author: CANE, C.J.

text:
    In the Interest of Shawnda G., a person Under the Age of 18: Brown County, Petitioner-Respondent, v. Marcella G., Respondent-Appellant, Carlos H., Respondent. [Case No. 01-0956.] In the Interest of Jeremiah I.T., Jr., a person Under the Age of 18: Brown County, Petitioner-Respondent, v. Marcella G., Respondent-Appellant, Jeremiah T., Sr., Respondent. [Case No. 01-0957] In the Interest of Iroquois P.T., a person Under the Age of 18: Brown County, Petitioner-Respondent, v. Marcella G., Respondent-Appellant, Jeremiah, T., Sr., Respondent. [Case No. 01-0958] In the Interest of Avia A.T., a person Under the Age of 18: Brown County, Petitioner-Respondent, v. Marcella G., Respondent-Appellant, Jeremiah T., Sr., Respondent. [Case No. 01-0959]
    Court of Appeals

      Nos. 01-0956, 01-0957, 01-0958, 01-0959.

      Submitted on briefs June 15, 2001. —
    Decided July 10, 2001.

    2001 WI App 194
    (Also reported in 634 N.W.2d 140.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Tim Provis of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Thomas J. Walsh of Walsh & Walsh, S.C. of De Pere.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Originally assigned as a one-judge appeal under Wis. Stat. Rule 752.31(2), this case was reassigned to a three-judge panel by order dated June 12, 2001. See Wis. Stat. Rule 809.41(3). All statutory references herein refer to the 1999-2000 version unless otherwise noted.

   CANE, C.J.

¶ 1 Marcella G. appeals from orders terminating her parental rights to her four children, three of whom are enrolled members of the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota (hereafter, the Tribe). Marcella raises a single issue on appeal: whether the circuit court erred when it denied her a hearing on her motion to transfer jurisdiction to the Tribe, pursuant to the Indian Child Welfare Act (ICWA), codified at 25 U.S.C. §§ 1901-1963.

¶ 2. First, we conclude that because Marcella has not raised any issues with respect to the termination of her parental rights to Shawnda G., that termination is affirmed. Second, we agree with Marcella that the circuit court erred when it concluded that Marcella had no standing to move for a transfer of jurisdiction to tribal court with respect to the other three children. We conclude that the appropriate remedy is to reverse and remand so that the circuit court can ascertain whether the tribal court will accept jurisdiction and, if so, whether there is good cause to deny Marcella's request to transfer jurisdiction. Therefore, the order concerning Shawnda is affirmed, and the remaining orders are reversed and remanded for further proceedings.

Background

¶ 3. Brown County petitioned to terminate Marcella's parental rights to her four children. The Tribe filed a motion to transfer jurisdiction with respect to three of the children to the Fort Berthold Tribal Court, pursuant to the ICWA. In support of its motion, the Tribe filed with the circuit court a tribal court order accepting jurisdiction. A motion hearing was scheduled so that the circuit court could determine whether there was good cause not to transfer the case. See 25 U.S.C. § 1911(b).

¶ 4. At the motion hearing, the Tribe and the County presented a memorandum of understanding in which the Tribe withdrew its motion to transfer jurisdiction and reserved its right to file future motions to transfer jurisdiction at any point prior to a completed adoption. Neither the Tribe nor the County presented the court with any documentation suggesting that the tribal court had withdrawn its order accepting jurisdiction.

¶ 5. Counsel for Marcella objected to the memorandum and moved the circuit court to transfer jurisdiction to the tribal court. The court and the Tribe's attorney discussed this request:

[CIRCUIT COURT]: Well, I'm satisfied that under the law, [tribal attorney,] your clients alone have the standing to initiate this request as a sovereign nation, and if your clients, [the Tribe], are asking to have their motion withdrawn, then no other party has any standing to make this request. Do you agree with that?
[TRIBAL ATTORNEY]: I agree with that, your Honor.
[CIRCUIT COURT]: All right. Then I'm going to grant the motion of [the Tribe] without prejudice and reserving to them the right to renew this motion at any time they feel it's in the interests of their nation to do so to withdraw their motion to transfer [jurisdiction].

The four termination cases proceeded in the circuit court. Ultimately, Marcella pled no contest to the petitions and the circuit court found that it was in the children's best interests to terminate Marcella's parental rights. This appeal followed.

Discussion

¶ 6. Resolution of this appeal requires statutory interpretation of the ICWA, a question of law this court reviews de novo. See In re D.S.P., 166 Wis. 2d 464, 471, 480 N.W.2d 234 (1992). At issue is 25 U.S.C. § 1911(b), pursuant to which states and tribes share concurrent jurisdiction, in foster care placement and parental rights termination cases, over an Indian child not domiciled or living within the reservation of the child's tribe. The statute provides the procedure for determining whether the state or the tribe will exercise jurisdiction:

Transfer of proceedings; declination by tribal court
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

¶ 7. Pursuant to the plain language of 25 U.S.C. § 1911(b), "either parent or the Indian custodian or the Indian child's tribe" may request a transfer of jurisdiction. Marcella, as a parent, was therefore entitled to request a transfer of jurisdiction. Accordingly, the circuit court erred when it concluded that Marcella lacked standing to do so. See id.

¶ 8. Our conclusion is consistent with both the plain language of 25 U.S.C. § 1911(b) and with the Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584-95 (1979). Our supreme court has recognized that these guidelines, although not binding on courts, are helpful and should be considered when deciding issues under the ICWA. See D.S.P., 166 Wis. 2d at 477.

¶ 9. The guidelines provide that with respect to petitions for transfer filed under 25 U.S.C. § 1911(b), "Either parent, the Indian custodian or the Indian child's tribe may, orally or in writing, request the court to transfer the Indian child custody proceeding to the tribal court of the child's tribe." See 44 Fed. Reg. at 67590. The guidelines further state:

C.2. Criteria and Procedures for Ruling on 25 U.S.C. § 1911(b) Transfer Petitions
a. Upon receipt of a petition to transfer . .. the court must transfer unless either parent objects to such transfer, the tribal court declines jurisdiction, or the court determines that good cause to the contrary exists for denying the transfer.
b. If the court believes or any party asserts that good cause to the contrary exists, the reasons for such belief or assertion shall be stated in writing and made available to the parties who are petitioning for transfer. The petitioners shall have the opportunity to provide the court with their views on whether or not good cause to deny transfer exists.

Id. at 67590-91.

¶ 10. The parties suggest no reason not to apply the guidelines in this case. It is undisputed that Marcella orally requested a transfer of jurisdiction. In the absence of an objection by the other parent or a declination of jurisdiction by the tribal court, see 25 U.S.C. § 1911(b), the circuit court had an obligation to transfer the case to tribal court unless it determined that good cause existed to deny the request. See 44 Fed. Reg. at 67590-91. Pursuant to the guidelines, where the court believes or any party asserts that good cause to deny the transfer exists, the petitioners "shall have the opportunity to provide the court with their views on whether or not good cause to deny transfer exists." See id. Accordingly, the circuit court erred when it immediately rejected Marcella's request.

¶ 11. The County agrees that a parent has standing to request a transfer, and that a parent can orally submit a request. See 25 U.S.C. § 1911(b); 44 Fed. Reg. at 67590. However, the County argues that the termination should be affirmed because the Tribe's withdrawal of its motion to transfer imposed a duty on Marcella to ask the tribal court to accept jurisdiction. The County asserts that no hearing on Marcella's motion was necessary because Marcella "never requested that the Tribal Court take jurisdiction over those three children and the Tribe was no longer willing to support that transfer when it agreed to the Memorandum of Understanding." We disagree with the County's conclusions.

¶ 12. First, the tribal court had already issued an order accepting jurisdiction over the cases, which the Tribe provided to the circuit court in support of its motion to transfer. There is nothing in the record to suggest that the tribal court subsequently declined jurisdiction. Furthermore, Marcella's counsel explained to the circuit court that before the Tribe withdrew its motion, Marcella's desire to transfer jurisdiction had been consistent with the Tribe's own motion, pursuant to which the Tribe had procured the tribal court order accepting jurisdiction. Until the Tribe withdrew its request for transfer, there was no reason for Marcella to duplicate the Tribe's efforts.

¶ 13. Additionally, even if there had been no tribal court order in the record, 25 U.S.C. § 1911(b) does not specifically require that Marcella personally obtain a tribal court order accepting jurisdiction. The guidelines indicate that once a state court is asked to transfer jurisdiction, the court has an obligation to ascertain whether the tribal court is declining jurisdiction. The guidelines provide:

C.4. Tribal Court Declination of Transfer
a. A tribal court to which transfer is requested may decline to accept such transfer.
b. Upon receipt of a transfer petition the state court shall notify the tribal court in writing of the proposed transfer. The notice shall state how long the tribal court has to make its decision. The tribal court shall have at least twenty days from the receipt of notice of a proposed transfer to decide whether to decline the transfer. The tribal court may inform the state court of its decision to decline either orally or in writing.
c. Parties shall file with the tribal court any arguments they wish to make either for or against tribal declination of transfer. Such arguments shall be made orally in open court or in written pleadings that are served on all other parties.
d. If the case is transferred the state court shall provide the tribal court with all available information on the case.

44 Fed. Reg. at 67592.

¶ 14. Pursuant to the guidelines, once the circuit court received Marcella's request for transfer, it should have notified the tribal court of the proposed transfer. It is undisputed that the circuit court made no attempt to contact the tribal court before rejecting Marcella's request. This is understandable, given the Tribal attorney's erroneous assertion that the Tribe alone had standing to request a transfer. Nevertheless, the fact remains that the circuit court erroneously denied Marcella's request for transfer without first ascertaining whether the tribal court would accept jurisdiction and, if so, determining whether there was good cause to deny the transfer.

¶ 15. Having concluded that the circuit court erred, we next consider the appropriate remedy. Marcella suggests that the orders should be reversed and remanded "for a proper jurisdictional hearing under the ICWA." Neither she nor the County address what should happen if the circuit court finds good cause to deny transfer or if the tribal court declines jurisdiction.

¶ 16. We conclude that reversal is appropriate and, on remand, direct the circuit court to first ascertain whether the tribal court will accept jurisdiction. If the tribal court indicates that it will accept jurisdiction, then the circuit court must transfer jurisdiction unless it determines that good cause exists for denying the transfer. See 25 U.S.C. § 1911(b); 44 Fed. Reg. at 67590-91 (outlining procedures for parties to contest the transfer). Marcella, as petitioner for the transfer, "shall have the opportunity to provide the court with [her] views on whether or not good cause to deny transfer exists." See 44 Fed. Reg. at 67590-91.

¶ 17. The guidelines, as well as case law interpreting 25 U.S.C. § 1911(b), will provide a framework for the circuit court's good cause analysis. The guidelines state:

C.3. Determination of Good Cause to the Contrary
a. Good cause not to transfer the proceeding exists if the Indian child's tribe does not have a tribal court as defined by the Act to which the case can be transferred.
b. Good cause not to transfer this proceeding may exist if any of the following circumstances exists:
i. The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.
ii. The Indian child is over twelve years of age and objects to the transfer.
iii. The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.
iv. The parents of a child over five years of age are not available and the child has had little or no contact with the child's tribe or members of the child's tribe.
c. Socio-economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists.
d. The burden of establishing good cause to the contrary shall be on the party opposing the transfer.

44 Fed. Reg. at 67591.

¶ 18. If the circuit court concludes there is no good cause to deny the request to transfer, then it shall order that jurisdiction over the three cases be transferred to the tribal court for further proceedings. If, however, the circuit court finds there is good cause not to transfer jurisdiction to the Tribal court, or if the Tribal court declines jurisdiction, then the circuit court will retain jurisdiction. In that case, because Marcella has not sought to withdraw her no contest pleas or to challenge the circuit court's findings of fact and conclusions of law, the circuit court may exercise its discretion and enter a new order incorporating the previous findings and conclusions without holding additional evidentiary hearings.

By the Court. — Orders affirmed in part; reversed in part and causes remanded with directions.

       Jeremiah T., Sr., the father of the three children enrolled in the Tribe, is a tribal member, but Marcella is not. Jeremiah's parental rights were also terminated and are not at issue in this appeal.
      The Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota, is a federally-recognized Indian tribe. See 65 Fed. Reg. 13298, 13301 (March 13, 2000).

       In her reply brief, Marcella concedes that the single issue raised in her appeal does not concern the order terminating her rights to Shawnda G.

       It does not appear that Marcella subsequently renewed her request to transfer jurisdiction to the tribal court. However, the County does not argue that she waived the issue by failing to do so.

       The ICWA was created in 1978 in response to mounting evidence that Indian children were being separated from their families and adopted into non-Indian homes. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32-37 (1989) (detailing legislative history of the ICWA).
      On appeal, the parties do not dispute the applicability of the ICWA; at issue is whether it was correctly applied. We recognize, however, that some courts in other jurisdictions have refused to apply the ICWA unless an Indian child is being removed from an existing Indian family (i.e., a family with significant connection to the Indian community). See, e.g., In re Baby Boy L., 643 P.2d 168, 175-76 (Kan. 1982) (adopting the "existing Indian family" exception). Other courts have explicitly declined to adopt the exception. See, e.g., Michael J., Jr. v. Michael J., Sr., 7 P.3d 960, 963 (Az. App. 2000) (rejecting judicially-created exception to the ICWA). Wisconsin courts have not addressed the potential application of the exception. Because neither party addresses its potential application here, even though Marcella is not a tribal member and the children are not living on the Tribe's reservation, we do not consider the issue and, instead, will assume that the ICWA applies.

       In contrast, an Indian tribe has exclusive jurisdiction, in foster care placement and parental rights termination cases, over an Indian child who resides or is domiciled within his or her reservation. See 25 U.S.C. § 1911(a).

       Other courts have likewise found the guidelines helpful in evaluating requests to transfer jurisdiction under 25 U.S.C. § 1911(b). See In re M.E.M., 635 P.2d 1313, 1317 (Mont. 1981); In re Laurie R., 760 P.2d 1295, 1299 (N.M. App. 1988); In re M.C., 504 N.W.2d 598, 601 (S.D. 1993).

       We note that the Tribe's memorandum of understanding could not implicitly or explicitly decline jurisdiction or reverse the tribal court's order accepting jurisdiction because the Tribe and the tribal court are distinct legal entities. See 25 U.S.C. §§ 1903(8) and (12) (defining Indian tribe and tribal court); In re C.Y., 925 P.2d 447, 449 (Kan. App. 1996) (recognizing distinction of tribal court and tribe and the need for tribal court, as opposed to tribe, to decline jurisdiction in the ICWA case).

       Indeed, if Marcella had opposed the transfer, her objection alone would have defeated the Tribe's request to transfer jurisdiction. See 25 U.S.C. § 1911(b).

       Arguably, the fact that there was already an existing tribal court order accepting jurisdiction means the circuit court could have assumed, absent evidence to the contrary, that the tribal court would continue to accept jurisdiction. However, given that the Tribe had procured the tribal court order in support of its motion to transfer and was now withdrawing the motion, it would also have been reasonable for the circuit court to question whether the tribal court was still willing to accept jurisdiction. In that case, the court should have contacted the tribal court to ascertain its intentions.

       Additionally, although the County on appeal disagrees with the circuit court's conclusion that Marcella lacked standing to request a transfer of jurisdiction, it does not appear that the County shared this opinion with the circuit court. Had the County done so, the circuit court would have had an opportunity to correct its error.

       We note that a state court need not contact the tribal court or consider whether good cause exists to deny the request for transfer if either parent objects to the transfer. See 25 U.S.C. § 1911(b). Here, neither party suggests that Jeremiah T., Sr., objected, and Marcella sought the transfer, so we do not consider this possibility further.

       Marcella has specifically requested a "jurisdictional hearing" on her motion. Neither 25 U.S.C. § 1911(b) nor the guidelines explicitly require a "jurisdictional hearing." Nonetheless, several courts have held that a jurisdictional hearing is required to provide litigants with due process. See, e.g., In re G.L.O.C., 668 P.2d 235, 237 (Mont. 1983) (a jurisdictional hearing is required before the court can enter an order either granting or denying a request for the transfer of jurisdiction of Indian children to tribal custody). Conversely, at least one court has suggested that a hearing is not always required. See In re J.L.P., 870 P.2d 1252, 1259 (Colo. App. 1994) (due process was afforded to all parties where court heard argument on request for transfer of jurisdiction, requested additional briefing on the issue of good cause, reserved right to rule on transfer of jurisdiction without further hearings, and issued ruling without further hearings). In this case, we suggest that the most efficient manner of providing Marcella with the requisite opportunity to be heard will be to give her the hearing she requests. However, we do not decide whether an alternative approach, e.g., the submission of written briefs, would violate any party's due process rights.


source: Caselaw Access Project

author: ANDERSON, J. BROWN, EJ.

license: Public Domain

text:
    Equity Enterprises, Inc. and Equable Securities Corp., Plaintiffs-Respondents, v. Robert J. Milosch, Defendant-Appellant.
    Court of Appeals

      No. 00-2827.

      Submitted on briefs May 11, 2001. —
    Decided July 11, 2001.

    2001 WI App 186
    (Also reported in 633 N.W.2d 662.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of James W. Hammes of Cramer, Multhauf & Hammes, LLP, Waukesha.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief oí Michael H Schaalman of Quarles & Brady, LLP, Milwaukee.
    Before Brown, EJ., Anderson and Snyder, JJ.

       Petition to review denied 10-23-01.

   ANDERSON, J.

¶ 1. Robert J. Milosch appeals from a trial court judgment in favor of Equity Enterprises, Inc. and Equable Securities Corp. (Equable) validating a covenant not to compete in an employment contract between the parties and awarding Equable damages and attorney's fees in the amount of $137,851.99 because of Milosch's breach. Milosch argues that the trial court incorrectly concluded that a noncompete provision of the contract between the parties was valid and enforceable and that the trial court should not have granted Equable's summary judgment motion dismissing Milosch's counterclaim. We agree. Therefore, we reverse and remand.

Facts

¶ 2. Milosch was an agent/employee of Equable for approximately fifteen years from 1982 until February 12, 1997. Equable sells insurance products and securities products. After terminating his employment with Equable, Milosch contacted Equable customers to solicit their business. On February 25, 1997, Equable filed an action in the circuit court of Waukesha county seeking to enforce a covenant not to compete contained in two employment contracts executed by Milosch and Equable on August 22, 1996. In its complaint, Equable sought to enforce the covenant not to compete contained in section 5.1 of each contract. Section 5.1 reads as follows:

Restrictions on Competition. During Employee's employment with [Equable] and for a period of eighteen (18) months following the termination of Employee's employment with [Equable], Employee agrees that he shall not, except on behalf of [Equable], either directly or indirectly, in the same or substantially similar capacity in which he performed services for [Equable], whether as agent, stockholder (except as the holder of no more than five percent (5%) of the stock of a publicly held company provided Employee does not participate in the business of such company or render advice or assistance to it), employee, officer, director, trustee, partner, proprietor or otherwise:
(a) Entice, or attempt to entice, any sales representative of [Equable] (whether such sales representative is an agent or employee of [Equable]) to terminate his employment or sever his relationship with [Equable], or to become associated with (as a representative, agent, consultant or otherwise) or employed by another person, firm or entity engaged in a business competitive with that conducted by [Equable], whether or not Employee is affiliated with such person, firm or entity; or
(b) Do business with any Customer (as defined below) with respect to any form of insurance coverage product competitive to that sold or offered by [Equable], or solicit or attempt to solicit any such Customer to do insurance business with a competitor of [Equable], even if Employee is not associated with such competitor. Employee recognizes and admits that the Customers are customers of [Equable], and the Employee agrees that, during his employment with [Equable] and the eighteen (18) month period following the termination of his employment with [Equable], he shall not interfere in any way with the relationship between the Customers and [Equable], nor shall he cause or attempt to cause any customer of [Equable] to cease doing business with [Equable] or to cause or attempt to cause such Customer to reduce the amount of business done with [Equable].
(c) For purposes hereof "Customer" shall mean any customer of [Equable] or any Related Party with whom Employee transacted business or whom Employee serviced on behalf of [Equable] during any part of Employee's employment. "Customer" shall exclude, however, those persons and entities to whom Employee sold any insurance coverage or securities product prior to his employment with [Equable], all of whom are listed on attached Exhibit A, if any.

¶ 3. On June 6, 1997, Milosch filed a counterclaim arguing that Equable had breached its employment contract and that under section 4.1 of the contract he is entitled to recover all subsequent or ongoing commissions or payments received by Equable, as those commissions or payments related to products Milosch sold during the course of his employment with Equable. Section 4.1 reads:

Vesting Upon Termination Due To Death, Disability, Retirement or After Ten Years of Service. Upon termination of employment for reasons of death or total and permanent disability of Employee, or termination on or after ten (10) years of affiliation with [Equable] for reasons other than the commission of a prohibited act as defined in Paragraph 3.1 of this Agreement, all subsequently accruing commissions on policies, with respect to which Employee was entitled at the time of such termination shall be vested in and paid to Employee or his beneficiary, as the case may be, in the same manner as if this Agreement were still in effect.

¶ 4. Subsequently, an evidentiary hearing was held and the trial court entered a temporary order enjoining Milosch from violating the terms of section 5.1 in the two contracts during the pendency of the litigation. At the request of Equable, the trial court also entered an order bifurcating the case. If the covenants were found to be valid and enforceable, a second trial would be conducted with respect to any claim for damages asserted by Equable.

¶ 5. On August 6, 1997, following a two-day jury trial, the jury returned a special verdict finding that section 5.1 of the contracts was reasonable as to its time and geographic limitations, and otherwise complied with the requirements of Wis. Stat. § 103.465 (1999-2000). Following the return of the special verdict, the trial court entered a judgment finding section 5.1 of the contracts to be a valid and enforceable covenant, and issued a permanent injunction enjoining Milosch from violating this provision of the contracts.

¶ 6. On November 3, 1997, Milosch filed a motion asking the trial court for entry of an order granting summary judgment dismissing Equable's claim for damages or, in the alternative, judgment on the pleadings. In support of his motion, Milosch submitted an affidavit to the court wherein he asserted that renewal commissions due him under section 4.1 of the contracts would have resulted in payments being made to him by Equable in an amount of not less than $25,000 per year. Milosch further stated that although payments would continue on an indefinite basis, he believed that the commission payments would have continued for at least a period of ten years such that the total renewal commissions due him equaled or exceeded $250,000.

¶ 7. On February 20,1998, the trial court issued a decision denying Milosch's motion for summary judgment. The trial court found that there were factual issues relating to the amount of damages, if any, Equable had suffered as a result of Milosch's breach of section 5.1 of the contracts, and that these issues needed to be resolved by a jury. Equable then filed a motion requesting that the trial court reconsider its decision of February 20, 1998, and enter an order granting summary judgment in favor of Equable dismissing Milosch's counterclaim. Equable argued that Milosch had forfeited his vested right to receive renewal commissions because of his postemployment competition, which was prohibited by section 5.1 of the contracts. In support of its contention, Equable argued that section 4.2 of the contracts required dismissal of the counterclaim. Section 4.2 reads:

Commissions After Other Termination. Upon termination of employment by either party for any reason other than those specified in Paragraph 4.1, above, Employee shall be entitled only to commissions accrued to the date of termination and shall not be entitled to any subsequently accruing commissions on policies. Upon termination of employment by reason of the Employee's commission of a prohibited act (as defined in Paragraph 3.1, above), or if subsequent to termination Employee violates any of the provisions hereof, Employee shall forfeit any and all right to further commissions otherwise payable hereunder.

¶ 8. Agreeing with Equable's interpretation of section 4.2, the trial court ordered Milosch's counterclaim dismissed. The dismissal was entered on September 1, 1998. Following dismissal of his counterclaim, Milosch requested that the trial court refer the issue relating to Equable's claim for damages to the National Association of Securities Dealers (NASD), in accordance with NASD regulations which govern the conduct of both Equable and Milosch. Equable concurred with this request, and the trial court entered an order referring any remaining issues, as they related to damages, to NASD for arbitration proceedings.

¶ 9. Subsequently, a NASD arbitration panel awarded Equable damages in the amount of $74,927.15, and attorney's fees in the amount of $60,000. The trial court retained jurisdiction of the proceeding pending the conclusion of the arbitration. Upon application of Equable to affirm the NASD arbitration award, the trial court entered a judgment affirming the arbitration award on October 3, 2000.

¶ 10. Milosch appeals from the final judgment entered by the trial court on October 3, 2000. The issues raised on appeal relate to the trial court orders affirming the validity of section 5.1 of the contracts and dismissing Milosch's counterclaim based on its interpretation that section 4.2 is valid.

Analysis

¶ 11. No extrinsic evidence was introduced to show the intent of the parties to the contract; therefore, our interpretation of the contract is a question of law reviewed de novo. RTE Corp. v. Md. Cas. Co., 74 Wis. 2d 614, 621, 247 N.W.2d 171 (1976). The issue presented is the enforceability under Wis. Stat. § 103.465 of sections 5.1 and 4.2 of the agency agreements between Milosch and Equable, which require that Milosch forfeit his renewal commissions if, after termination of the agreement, he engages in certain competitive practices. We conclude that sections 5.1 and 4.2 are unenforceable as an unreasonable restraint of trade and reverse the decision of the trial court.

¶ 12. We note that covenants not to compete are generally disfavored in the law. Farm Credit Servs. of N. Cent. Wis., ACA v. Wysocki, 2000 WI App 124, ¶ 8, 237 Wis. 2d 522, 614 N.W.2d 1, rev'd on other grounds, 2001 WI 51, 243 Wis. 2d 305, 627 N.W.2d 444. Such restrictions must withstand close scrutiny to pass legal muster as being reasonable; they will not be construed to extend beyond their proper import or further than the language of the contract absolutely requires. Streiff v. Am. Family Mut. Ins. Co., 118 Wis. 2d 602, 611, 348 N.W.2d 505 (1984). The legislature codified this policy in Wis. Stat. § 103.465, which provides:

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

¶ 13. The language in section 5.1 of the contracts is functionally equivalent to the language our supreme court found unenforceable for overbreadth under Wis. Stat. § 103.465 in Streiff. Streiff, 118 Wis. 2d at 607. In Streiff, the insurance company (American Family) refused to pay Streiff his "extended earnings," asserting that he had failed to comply with clauses 5h and 5i(4) of the employment contract. Id. By the time the matter came to court, American Family had decided not to rely on a violation of section 5i(4) as justification for nonpayment, and conceded that section 5i(4) was overly broad and unreasonable as to the territory described, that it violated § 103.465, and that it was unenforceable. Streiff, 118 Wis. 2d at 607. Section 5i(4) restricted a terminated agent from taking an employment opportunity in the insurance industry in any state of the United States in which the agent's former employer operated as a licensed insurer. Id. at 606-07.

¶ 14. The Streiff court refused to view section 5h separately from section 5i(4), holding that the two sections must be viewed together because they constituted an indivisible covenant governing several similar types of activities and establishing several time and geographical restraints. Id. at 613. Any part of an indivisible covenant, even if reasonable on its own, will not be given effect if any other part is unreasonable. Id. at 614-15. Thus, the supreme court, having agreed with American Family's concession that section 5i(4) was overly broad and unreasonable, held the entire covenant unenforceable. Id. at 615.

¶ 15. Here, section 5.1 implies a geographical restriction that is the functional equivalent to the prohibited geographical restriction in section 5i(4) of Streiff. Section 5.1 restricts Milosch from soliciting any Equable customers for a period of eighteen months after termination of employment. Section 5.1 is silent as to what territorial parameters Milosch must abide by, thereby implying at the least a nationwide restriction. Section 5.1 cannot escape the requirement of territorial reasonableness simply because it does not include any mention of geographical parameters. Wisconsin Stat. § 103.465 tells us that a covenant not to compete "within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal." Id. (emphasis added). Without any specified territory, section 5.1 is void. Like the unenforceable covenant in section 5i(4) of Streiff, the implication in section 5.1 is that Equable means to restrict its terminated agents from employment opportunities in the insurance and securities industry throughout this country. See Streiff, 118 Wis. 2d at 607. Therefore, because section 5.1 does not contain any geographical restrictions, section 5.1 fails and the jury finding that it was reasonable is an error of law.

¶ 16. We now address section 4.2 of the contract. As a threshold issue, we hold that deferred commissions are the property right of the agent. They are not commissions belonging to Equable, as Equable contends; they are not a "reward" given by Equable at its discretion. We arrive at this conclusion by applying the analysis of Garceau v. Garceau, 2000 WI App 7, 232 Wis. 2d 1, 606 N.W.2d 268, where we treated extended earnings as a property right. Id. at ¶ 7. In Garceau, Brenda and Jerry Garceau divorced after fourteen years of marriage. Id. at ¶ 2. During the marriage, Jerry obtained his insurance license, and at the time of the divorce, he had worked as an American Family Life Insurance agent for approximately ten years. Id. Jerry had a termination benefits plan with American Family. Id. at ¶ 4. The plan determined Jerry's compensation upon termination of his relationship with American Family. Id. Upon termination, Jerry was slated to receive extended earnings based on a percentage of renewal service fees earned during the twelve months prior to termination. Id. At trial, the trial court held that Jerry's termination benefits package should not be divided at the time of divorce as part of the marital estate. Id. at ¶ 1. The trial court found that there was "no way that an amount can be arrived at with any degree of accuracy," and thus it excluded Jerry's termination benefits package from the property division. Id. Brenda appealed from the judgment of divorce, claiming that the trial court had erred in its property division. Id. at ¶ 2.

¶ 17. On appeal, we addressed whether Jerry's termination benefits should be included in the marital estate, and, if included, how the benefits should be divided. Id. We held that extended earnings, as future benefits, are similar to pension benefits. Id. at ¶ 7. Under Wisconsin law, pension benefits are to be taken into consideration when the marital estate is divided, whether they have vested or not. Id. at ¶ 5. We considered Jerry's extended earnings, which were based on a percentage of renewal service fees earned, to be a property right divisible in the marital estate. Id. at ¶ 6. Similarily, we hold that Milosch's deferred commissions, which are also based on a percentage of renewal service fees earned, are the property right of Milosch.

¶ 18. With that threshold issue addressed, we look to the language of section 4.2. Under our supreme court's decision in Wassenaar v. Panos, 111 Wis. 2d 518, 331 N.W.2d 357 (1983), section 4.2 is a penalty provision which cannot stand. In Wassenaar, the issue was whether a stipulated damages clause in an employment contract constituted a liquidated damages clause or a penalty clause. Id. at 520-21. Liquidated damages clauses are a subset of stipulated damages clauses. A liquidated damages clause is the type of stipulated damages clause that a court holds to be reasonable and will enforce. Id. at 521. Penalty clauses are also a subset of stipulated damages clauses and are the type of stipulated damages that a court holds to be unreasonable and unenforceable. Id.

¶ 19. The test that the trial court and the appellate court should apply in deciding whether a stipulated damages clause is valid is whether the clause is reasonable under the totality of the circumstances. Id. at 526. The reasonableness test is a compromise between two competing viewpoints toward stipulated damages clauses, one favoring enforcement of stipulated damages clauses and the other disfavoring such clauses. Id. at 528. The reasonableness test ensures that the court respects the parties' bargain, but prevents abuse. Id. at 529. Stipulated damages substantially in excess of injury justify an inference of unfairness in bargaining or an inference of an objectionable in terrorem agreement designed to deter a party from breaching the contract, to secure performance, and to punish the breaching party if the deterrent is ineffective. Id. at 528-29.

¶ 20. Several factors are helpful in determining whether a particular stipulated damages clause is reasonable: "(1) Did the parties intend to provide for damages or for a penalty? (2) Is the injury caused by the breach one that is difficult or incapable of accurate estimation at the time of contract? and (3) Are the stipulated damages a reasonable forecast of the harm caused by the breach?" Id. at 529-30 (footnotes omitted).

¶ 21. The determination as to whether a stipulated damages clause is valid presents a question of law. Id. at 523-24. In our evaluation of section 4.2, we note that the reasonableness of a stipulated damages clause cannot be determined by a mechanical application of these three factors. Id. at 533. In ruling on the reasonableness of a stipulated damages clause, a court should take into account these three factors along with the competing policies that gave rise to the adoption of the reasonableness test as the test for distinguishing between enforceable liquidated damages provisions and unenforceable penalty provisions. Id.

¶ 22. In determining whether a particular clause is reasonable, the first factor — whether the parties intend to provide for damages or for a penalty — is only slightly helpful because the subjective intent of the parties has little bearing on whether the clause is objectively reasonable. Id. at 530. In short, the label the parties apply to the clause, which might indicate their intent, does have some evidentiary value, but it is not conclusive. Id. We agree with Miloseh that the plain language of the contract at issue here implies a penalty rather than a liquidated damage. The parties did not use either the term "damages" or "liquidated damages." Rather, the parties used the term "forfeit" to describe the consequences of a postemployment breach of contract. Although not conclusive, we can infer that the intent of the parties was that the forfeiture would constitute a penalty and was intended to punish an employee who violated any provision of the contract subsequent to termination of the contract.

¶ 23. The second factor — whether the injury caused by the breach is one that is difficult or incapable of accurate estimation at the time of contract, sometimes referred to as the "difficulty of ascertainment" factor — is more reliable and has several facets. Id. at 530-31. "These facets include the difficulty of producing proof of damages at trial; the difficulty of determining what damages the breach caused; the difficulty of ascertaining what damages the parties contemplated when they contracted; the absence of a standardized measure of damages for the breach; and the difficulty of forecasting, when the contract is made, all the possible damages which may be caused or occasioned by the various possible breaches." Id. at 531.

¶ 24. We hold that the amount of damages in the case of an alleged breach is ascertainable. We point to the fact that Equable originally had an expert witness prepared to testify as to the damages sustained by Equable as a result of Milosch's solicitation of Equable's clients subsequent to the termination of the employment contract. Later, the expert's report was used as a basis in the arbitration proceeding to assess actual damages of $74,927.15. The ability to put a figure on actual damages persuades us that the breach of contract on which this action is premised is not based upon circumstances that make it difficult or impossible for a party to accurately estimate its alleged damages.

¶ 25. The third factor in determining whether a clause is reasonable asks whether the stipulated damages are a reasonable forecast of the harm caused by the breach. Id. If the damages provided for in the contract are grossly disproportionate to the actual harm sustained, the courts usually conclude that the parties' original expectations were unreasonable. Id. at 532. The actual damages in this case, after the arbitration proceeding, were determined to be $74,927.15. Milosch contends that he would have received renewal commissions on an indefinite basis, and that in the first ten years following termination of the contract, those renewal commissions would have exceeded $250,000.00. If Milosch is correct, his forfeiture of this $250,000.00 was approximately three and one-half times the actual damages sustained by Equable. We will leave this determination to the trial court on remand, with the caveat that a forfeiture in an amount three and one-half times the actual damages should be closely scrutinized when deciding whether it qualifies as "substantially in excess of [the] injury" alleged to have been sustained by Equable. Id. at 528.

¶ 26. Having established that sections 5.1 and 4.2 are each invalid when analyzed separately, we additionally conclude under Streiff ■ that these sections are intertwined and indivisible because they govern similar types of activities and establish time and geographical restraints. See Streiff, 118 Wis. 2d at 613. As discussed earlier, section 5.1 is a covenant not to compete and is unreasonably silent as to geographical restrictions. Similarly, section 4.2 functions as a covenant not to compete because it encompasses all sections of the contract by reference and thus encompasses the unreasonable geographical restriction in section 5.1.

¶ 27. In other words, section 4.2 provides that the agent must comply with all the terms and conditions of the entire agreement in order to receive "further commissions otherwise payable hereunder." Thus, section 4.2 requires as a condition for receiving payments of renewal commissions that the terminated agent comply with all other sections, which includes section 5.1. The two sections must be read together. When read together, sections 5.1 and 4.2 place substantially similar restraints on Milosch vis-a-vis Equable and make him subject to forfeiture of renewal commissions if he violates any of the restraints. Like the restraints in Streiff, these restraints are indivisible and unreasonable for overbreadth.

¶ 28. In sum, the contracts between Milosch and Equable contain two indivisible and unreasonable covenants not to compete. We therefore reverse so much of the judgment giving Equable actual damages and attorney's fees. We reinstate Milosch's counterclaim for his deferred commissions and remand to the trial court for a hearing limited to a determination of the amount of deferred commissions to which Milosch is entitled.

By the Court. — Judgment reversed and cause remanded.

BROWN, EJ.

¶ 29. (concurring). I agree with the majority that the noncompete clause is invalid. In my view, if the noncompete clause is invalid, then Milosch has not violated any condition of the contract. If Milosch has not violated a valid condition of the contract, section 4.2, which allows forfeiture of renewal commissions upon violation of the contract, may not be invoked. Therefore, Equable cannot use section 4.2 to relieve itself from paying further commissions to Milosch for the simple reason that Milosch has not violated any valid covenant of the contract. Thus, all of the majority's discussion taking place after holding that section 5.1 is invalid, is unnecessary.

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

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

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

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

        Id. at 607.

       The Wisconsin Supreme Court's decision in Farm Credit Services of North Central Wisconsin, ACA v. Wysocki, 2001 WI 51, 243 Wis. 2d 305, 627 N.W.2d 444, does not alter our conclusion that section 5.1 is an invalid covenant not to compete. In Wysocki, the supreme court held that where the covenant not to compete contains a restriction "narrowly tailored to a customer list," the lack of a geographical restriction is not fatal. Id. at ¶ 1. First, neither party has discussed the "customer list" restriction contained in section 5.1; we usually decline to sua sponte consider an issue not raised on appeal or in the trial court. Schmitz v. Grudzinski, 141 Wis. 2d 867, 876, 416 N.W.2d 639 (Ct. App. 1987).
      Second, the "customer list" restriction in this case is far from being narrowly tailored. In Wysocki, the restriction prohibited Wysocki from contacting any client he had serviced in the year prior to his date of separation. Wysocki, 2001 WI 51 at ¶ 14. In another "customer list" restriction case, Hunter of Wisconsin v. Hamilton, 101 Wis. 2d 460, 304 N.W.2d 752 (1981), the supreme court approved a "customer list" restriction limited to customers serviced during a period which was the lesser of two years before the employee's termination or the employee's period of employment. Id. at 462-63. In contrast, the "customer list" restriction in this case prohibits Milosch from doing business with any customer of Equable whom Milosch serviced at any time during his employment with Equable. This restriction is unreasonable because it would prohibit Milosch from doing business with a customer he serviced during his first weeks of employment in 1982 who subsequently transferred his or her business to a competitor of Equable. Such an overbroad restriction is invalid because preventing Milosch from contacting former Equable customers is not reasonably necessary to protect Equable's legitimate business interests.

       The definition of in terrorem is: "[Latin "in order to frighten"] By way of threat; as a warning." Black's Law DICTIONARY 825 (7th ed. 1999).

       If on further review, the supreme court were to find that section 5.1 is valid, then I think it is important to state my agreement with the majority that section 4.2 is a penalty clause.


author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Anthony J. Leitner, Defendant-Appellant.

    Court of Appeals

      No. 00-1718-CR.

      Submitted on briefs January 5, 2001.—

      Decided July 12, 2001.

    2001 WI App 172
    (Also reported in 633 N.W.2d 207.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jim D. Scott of Michael Ahlan Law Firm, S.C., La Crosse.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Mary E. Burke, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, Deininger and Lundsten, JJ.

       Petition to review granted 9-19-01.

   LUNDSTEN, J.

¶ 1. Anthony Leitner pled no contest to reckless driving causing great bodily harm. On appeal, he claims the trial court erroneously denied his presentence request to withdraw his plea. He also claims the trial court violated the expungement statute, Wis. Stat. § 973.015, by considering expunged convictions and the behavior underlying the expunged convictions when passing sentence. We reject all of Leitner's arguments and affirm the judgment.

Background

¶ 2. On August 7, 1998, at approximately 2:00 a.m., Eric Dworschak was crossing a street in downtown La Crosse when he was struck by a car. Dworschak's injuries included permanent blindness in one eye. The driver of the car that struck Dworschak did not stop.

¶ 3. On February 4, 1999, Anthony Leitner was charged with hit and run causing great bodily harm under Wis. Stat. § 346.67(l)(a) and (c) (1997-98). At the preliminary hearing, Leitner's roommate at the time of the crime, Kevin Taylor, testified. Referring to the evening of August 6 and the early morning hours of August 7, 1998, Taylor said he saw Leitner drinking beer at their residence at about 8 p.m. He thought Leitner appeared intoxicated. He said Leitner left and returned around midnight looking "pale" and "shaking." Leitner told Taylor he was scared and had done something "really bad." Taylor said Leitner told him "he thought he had hit someone down town [sic] going about 40 miles an hour." Taylor and Leitner then looked at Leitner's vehicle and Taylor observed a round indentation in the windshield, about one foot in diameter. Leitner was bound over for trial.

¶ 4. On April 13, 1999, Leitner filed a notice of alibi. The only witness he listed was Taylor.

¶ 5. On September 24, 1999, Leitner entered a no contest plea. Pursuant to a plea agreement, the State moved to amend the charge downward to reckless driving causing great bodily harm, Wis. Stat. § 346.62(4) (1997-98), a change that reduced Leitner's maximum prison exposure from twenty-four months to eighteen months. Leitner entered a plea to the reduced charge. There is no suggestion in the record that this plea was anything but a knowing and voluntary plea'. The court ordered a presentence investigation report. Sentencing was scheduled for November 19, 1999.

¶ 6. The presentence report was issued on November 8. It contained a highly negative assessment of Leitner and recommended prison time. The report criticized Leitner for his lack of compassion for the victim and lack of remorse. The report also summarized some of the evidence against Leitner. It stated that witnesses at the scene believed the offending car was a Grand Am with the license plate THC-415. After getting a tip from a Crimestoppers caller, Leitner's vehicle, a Pontiac Grand Am, with license plate TSV-271, was located and seized. The report related that other witnesses who knew Leitner told police that Leitner threw his old license plates into the river. The previous plate for Leitner's car was THC-413.

¶ 7. Regarding criminal history, the presentence report indicated that Leitner had been convicted of misdemeanor hit and run and OWI causing injury. These crimes relate to an incident that occurred on October 28, 1997. The convictions had been'expunged, but the presentence report did not mention expungement.

¶ 8. In a letter dated November 9 and filed with the court on November 10, Leitner's counsel stated that he had reviewed the presentence report and would discuss it with Leitner.

¶ 9. On November 16, three days before sentencing, Leitner filed a motion seeking plea withdrawal. In an affidavit accompanying his motion, Leitner alleged he had "an alibi witness who can and will substantiate my whereabouts at the time of the alleged offense." The affidavit contained nothing specific about what the witness would say, but did assert that the witness was Leitner's fiancée and that Leitner did not previously identify her as a witness because she had been pregnant and he was concerned that the stress of cross-examination would be detrimental to her health. Leit-ner asserted that his fiancée had since miscarried and, therefore, could now testify in his defense. The affidavit did not specify when Leitner's fiancée allegedly miscarried. Leitner also asserted in the affidavit that he entered his plea to limit his potential period of incarceration so that he could engage in parenting with less disruption.

¶ 10. On November 17, two days before the scheduled sentencing, a hearing was held on Leitner's plea withdrawal motion. At that hearing, Leitner's counsel said Leitner had not informed him at the time of the plea that his fiancée could provide alibi testimony or that he was pleading to spare her the ordeal of testifying. Indeed, the record indicates that Leitner's counsel first learned of Leitner's assertion (that his fiancée was with him the night of the crime) by reading the presen-tence report. Leitner's counsel did not offer any evidence, but instead simply repeated the assertions in Leitner's affidavit and then highlighted case law applicable to plea withdrawal prior to sentencing.

¶ 11. The trial court denied Leitner's request for plea withdrawal. The court found that Leitner had failed to meet his burden of proof because he presented no evidence and merely asserted that a witness could provide an alibi. The court explained:

I think that the case law envisioning an evidentiary hearing requires something more than a defendant coming in and saying I want to withdraw my plea because I have all this other evidence that's going to support my innocence and that evidence will be presented to you by witness A, witness B, witness C, without having anything from [witness] A, B or C. Right now that basically is an assertion, an allegation that somehow this [fiancée] is going to substantiate his alibi.

The trial court also found that Leitner's alleged reasons for pleading lacked credibility. Instead, the court believed that Leitner was motivated by the unfavorable presentence report.

¶ 12. After the trial court denied Leitner's request to withdraw his plea, Leitner's counsel requested that the November 19 sentencing hearing be rescheduled so Leitner could call his fiancée as a witness to support his plea withdrawal request. The trial court denied the request, noting that Leitner already had an opportunity to present evidence.

¶ 13. Sentencing was held on November 19. At the beginning of the hearing, Leitner's counsel noted that the prior offenses listed in the presentence report had been expunged and should not be considered for sentencing purposes.

¶ 14. The State called two witnesses to show that Leitner attempted to cover up his guilt and to show lack of remorse.

¶ 15. Referring to the night of the crime, Leitner's former roommate Taylor testified that Leitner came home around midnight and said he had been downtown and thought he hit a person with his car. Taylor said he and Leitner looked at the indentation in the windshield. He said that night or the next morning Leitner put the license plates in the car's trunk and subsequently disposed of them. Taylor testified that over the course of the next month Leitner acted like it was not a big deal and like he thought he was going to get away with it. Another former roommate, Dan Coaty, testified that about three days after the accident, Leitner told him Leitner's car was "all messed up" because he hit someone downtown. Coaty testified that Leitner showed no remorse and told Coaty that he wished he had "hit [the victim] again to make him blind in the other eye."

¶ 16. Leitner's fiancée testified that she and Leit-ner had future plans for marriage. She said she had been pregnant, but recently "lost [the] child." Leitner's fiancée said she had never discussed the accident with Leitner. The court asked, "[w]ere you aware that as late as the day before yesterday Mr. Leitner was alleging that not only he didn't — that did he not do this, but also that you were an alibi witness for him?" Leitner's fiancée answered, "No."

¶ 17. During the prosecutor's sentencing argument she acknowledged that the convictions in the presentence report had been expunged. She went on to recount the underlying facts, which involved Leitner striking a pedestrian with his car in a parking lot while Leitner was intoxicated. The prosecutor informed the court she was not relying on court records, but instead on police reports and her own case file. Leitner's counsel did not object and later addressed the facts underlying the expunged convictions during his own argument.

¶ 18. In passing sentence, the trial court referred to the incident underlying the expunged convictions as follows:

You say you have no problem with alcohol and yet this is the second incident that you have been involved in that has resulted in your being charged with an alcohol-related offense, although it was not charged in this particular case, but certainly alcohol was involved.

¶ 19. The trial court criticized Leitner for his failure to take responsibility. It observed that Leitner had disposed of the plates to his car and attempted to present perjured testimony from his fiancée. The court sentenced Leitner to fifteen months in prison.

¶ 20. On April 20, 2000, Leitner requested sentence modification, arguing that the trial court had improperly relied on the expunged convictions. At a subsequent hearing, the trial court denied the motion, concluding that the expungement statute does not prohibit a sentencing court from considering facts underlying an expunged conviction. The trial court said: "The statute is clear that the conviction is expunged. It doesn't say anything about the facts being expunged." The court reasoned that if sentencing courts may consider uncharged violations and pending charges, they may consider facts underlying an expunged conviction.

Analysis

¶ 21. Leitner raises two issues. First, he claims that the trial court erred in not finding a "fair and just" reason for plea withdrawal. Second, he complains that the trial court relied on an improper factor in passing sentence. Neither claim warrants relief.

Plea Withdrawal Motion

¶ 22. Leitner pled no contest to reckless driving causing great bodily harm,.'. But' later filed a motion seeking plea withdrawal before his sentencing. As support for plea withdrawal, Leitner asserted in an affidavit that his fiancée could provide alibi testimony. Leit-ner explained that he pled no contest because his fiancée was pregnant and he did not want her to testify because he was concerned . the stress of cross-examination would be detrimental 'to her health. Leit-ner also asserted he entered his plea to limit his potential period of incarceration, so that he could engage in parenting with less disruption. Leitner asserted that his fiancée had since miscarried and, therefore, she could now "substantiate [his] whereabouts at the time of the alleged offense." He provided nothing specific, only these general assertions.

¶ 23. The trial court denied Leitner's request for plea withdrawal on two grounds. First, it found that Leitner failed to meet his burden of proof. Second, it found that Leitner's proffered reason for withdrawal was not credible. We affirm both findings.

¶ 24. A trial court's discretionary decision to deny plea withdrawal will be upheld on appeal when the court "reached a reasonable conclusion based on the proper legal standard and a logical interpretation of the facts." State v. Kivioja, 225 Wis. 2d 271, 284, 592 N.W.2d 220 (1999). While courts should liberally grant plea withdrawal prior to sentencing, withdrawal is not automatic. Id.; State v. Canedy, 161 Wis. 2d 565, 582-83, 469 N.W.2d 163 (1991). A defendant must show there is a "fair and just reason" for allowing the withdrawal. Kivioja, 225 Wis. 2d at 283; State v. Garcia, 192 Wis. 2d 845, 861, 532 N.W.2d 111 (1995).

¶ 25. "Fair and just" means " 'some adequate reason for [a] defendant's change of heart' . . . other than the desire to have a trial." Canedy, 161 Wis. 2d at 583 (citation omitted). An assertion of innocence is important, but not dispositive. Dudrey v. State, 74 Wis. 2d 480, 485, 247 N.W.2d 105 (1976); State v. Shanks, 152 Wis. 2d 284, 290, 448 N.W.2d 264 (Ct. App. 1989).

¶ 26. The defendant bears the burden of proving a fair and just reason by a preponderance of the evidence. Garcia, 192 Wis. 2d at 862; Canedy, 161 Wis. 2d at 583-84. If a trial court finds the defendant's proffered reason for plea withdrawal incredible, it may deny the motion. Garcia, 192 Wis. 2d at 863.

¶ 27. When a defendant shows a fair and just reason, the trial court should permit the plea withdrawal unless there is substantial prejudice to the prosecution. Kivioja, 225 Wis. 2d at 283-84; Garcia, 192 Wis. 2d at 861. In this case, the State has not claimed substantial prejudice and so we address only whether Leitner demonstrated a fair and just reason. =

¶ 28. The trial court properly denied the motion because it was not supported by a preponderance of evidence showing that Leitner actually had an alibi witness which he had previously chosen to conceal. At the hearing on his motion to withdraw his plea, Leitner did not produce his fiancée and did not offer his own testimony. He provided no details about what his fian-cée might say if she testified. He did not even specify when she had miscarried. By neither specifying nor offering evidence of these details, Leitner failed to meet his burden of proof.

¶ 29. The trial court also found that Leitner's proffered reason for plea withdrawal lacked credibility. We defer to this finding and conclude it is well supported by the record.

¶ 30. The trial court could have reasonably concluded that it is not credible that Leitner failed to discuss his fiancée's potential testimony with his attorney if his fiancée could have plausibly testified that she was with Leitner during the time frame of the crime. Even if Leitner had been concerned about his fiancée's health due to her pregnancy, .that concern does not explain why he did not even broach the issue with his attorney. Moreover, absent some information showing that Leitner's fiancée was particularly vulnerable during her pregnancy, there is no reason to think that testifying would endanger her health or her pregnancy.

¶ 31. In this context, the trial court was justified in finding that there was a very different reason for Leitner's belated request for plea withdrawal: the highly negative presentence report.

¶ 32. The presentence report discussed at length the details of the offense, including Leitner's complete lack of remorse and his efforts to conceal his involvement. The report revealed that one of Leitner's roommates feared him and was nervous about implicating Leitner because Leitner had previously pulled a knife on one person and had gone looking for another person while armed with an assault rifle. The report also disclosed that Leitner had threatened to kill a Marine sergeant when he was himself a Marine. The report recommended prison.

¶ 33. The record supports the belief that Leitner was hoping his plea would lead to probation and jail, not prison. At sentencing, his counsel recommended probation with the condition of twelve months' jail with work release. The content of the presentence report made that prospect less likely. As the trial court explained:

[0]bviously Mr. Leitner waited for the presentence investigation to be generated to see what its recommendations were going to be before he decided to ... attempt to withdraw his ... no contest plea. Then obviously when the presentence was unfavorable the first reaction is I don't want to plead guilty any more because now I know what I'm probably going to get at sentencing.

The trial court was entitled to consider the fact that Leitner waited until he saw the content of his presen-tence report before seeking plea withdrawal and infer from that fact, and the surrounding circumstances, that Leitner's true reason for seeking plea withdrawal was his fear of a harsh sentence due to the presentence report. See State v. Booth, 142 Wis. 2d 232, 237, 418 N.W.2d 20 (Ct. App. 1987) (courts are permitted to consider the fact that a defendant waited to "test the weight of potential punishment" before seeking plea withdrawal).

¶ 34. We are mindful of the fact that Leitner did not testify and, consequently, that the trial court did not have an opportunity to view Leitner's demeanor on the witness stand in assessing the credibility of his story. When facts are in dispute and credibility is an issue, live testimony is generally preferable. Honeycrest Farms, Inc. v. A.O. Smith Corp., 169 Wis. 2d 596, 604, 486 N.W.2d 539 (Ct. App. 1992). However, the trial court was entitled to make factual findings based on Leitner's affidavit because Leitner effectively invited the trial court to do exactly that. That is, Leitner presented his factual assertions in affidavit form and chose not to testify at the hearing. Accordingly, he waived his opportunity to present live testimony on disputed factual issues. See Connor v. Connor, 2001 WI 49, ¶¶ 22, 38, 243 Wis. 2d 279, 627 N.W.2d 182; see also Kelly v. Clark, 192 Wis. 2d 633, 655, 531 N.W.2d 455 (Ct. App. 1995) (stating the waiver rule, but finding no waiver).

¶ 35. Leitner makes a one-sentence assertion in his brief that the trial court wrongly denied him an evidentiary hearing. He is apparently referring to his belated request for a delay to present testimony from his fiancée. We are not persuaded. Leitner was given an opportunity to present evidence and instead relied on the sparse assertions contained in his affidavit. His request to delay sentencing so he could have a second hearing was properly denied.

¶ 36. Finally, we note that the trial court's fact finding, even though based in part on disputed assertions in an affidavit, is accorded deference. Although there are broad pronouncements in prior cases indicating that fact finding based on documentary evidence is not accorded deference, it is clear that when parties effectively invite fact finding based on affidavits, thereby waiving the right to present live testimony, the resulting factual findings are accorded deference on appeal. See Connor, 2001 WI 49 at ¶ 31.

¶ 37. For these reasons, the trial court did not misuse its discretion when it denied Leitner's request to withdraw his plea.

Consideration Of Expunged Offenses At Sentencing

¶ 38. At times, Leitner seems to complain that the trial court at sentencing improperly relied on the expunged convictions themselves. At other times, he complains that the trial court improperly relied on the facts underlying the expunged convictions. He argues that the expungement statute, Wis. Stat. § 973.015, directs courts and law enforcement agencies, such as the La Crosse County District Attorney's Office, to destroy all records relating to an incident which is the subject of an expunged conviction. Leitner requests resentencing "with instructions that the trial court may not rely upon the expunged record."

¶ 39. A defendant is entitled to resentencing when a sentence is affected by a trial court's reliance on an improper factor. See Harris v. State, 75 Wis. 2d 513, 518, 250 N.W.2d 7 (1977); State v. Suchocki, 208 Wis. 2d 509, 517-18, 561 N.W.2d 332 (Ct. App. 1997); State v. Mosley, 201 Wis. 2d 36, 45, 547 N.W.2d 806 (Ct. App. 1996). Leitner's sentencing claim fails because the trial court did not rely on an improper factor.

¶ 40. To the extent Leitner argues that the trial court relied on the expunged convictions themselves, his argument fails because the record shows otherwise. The trial court made no reference to the expunged convictions while explaining the sentence imposed, and the court's comments at the postconviction hearing reveal that it understood the convictions had been expunged and that it could not consider them.

¶ 41. Before proceeding further, we observe that Leitner waived his complaint, regarding the court's consideration of the underlying behavior. It is true that at the beginning of the sentencing hearing Leitner's counsel advised the court that the prior offenses listed in the presentence report had been expunged and asked the court not to consider them for sentencing purposes. Still, counsel's brief oral comments left it unclear whether he was asking the court to ignore the fact that Leitner had been convicted, or to ignore the convictions and the underlying behavior. When the prosecutor subsequently argued that the trial court should not consider the convictions, but was free to consider the underlying behavior, Leitner's counsel did not object. More importantly, there was no objection when the trial court made reference to the underlying behavior in passing sentence. So far as the trial court knew, Leitner agreed with the prosecutor's analysis and did not object to the court's consideration of the underlying conduct. Accordingly, Leitner waived the claim. See Mosley, 201 Wis. 2d at 46; State v. Rogers, 196 Wis. 2d 817, 826-29, 539 N.W.2d 897 (Ct. App. 1995); State v. Holt, 128 Wis. 2d 110, 122-24, 382 N.W.2d 679 (Ct. App. 1985).

¶ 42. In this case, however, we choose to ignore the waiver. The waiver rule is one of judicial administration, and appellate courts have the authority to ignore a waiver when a case presents an important recurring issue. Olmsted v. Circuit Court, 2000 WI App 261, ¶ 12, 240 Wis. 2d 197, 622 N.W.2d 29. We believe the expungement questions raised here merit a decision.

¶ 43. Leitner asserts that the legislature enacted the expungement statute in part to prevent sentencing courts from considering the behavior underlying expunged convictions. Apparently, Leitner believes the legislature attempted to achieve this goal by crafting a statute that requires courts and law enforcement agencies, such as a district attorney's office, to destroy all records relating to an incident which is the subject of an expunged conviction.

¶ 44. We begin our analysis of this issue by observing that sentencing courts have a general responsibility to acquire "full knowledge of the character and behavior pattern of the convicted defendant before imposing sentence." Elias v. State, 93 Wis. 2d 278, 285, 286 N.W.2d 559 (1980). In order to meet this responsibility, courts may consider uncharged and unproven offenses. Id. at 284. A court may even consider factual circumstances related to offenses for which the defendant has been acquitted. State v. Bobbitt, 178 Wis. 2d 11, 16-17, 503 N.W.2d 11 (Ct. App. 1993). Thus, unless there is an applicable prohibition, it is apparent that the sentencing court properly considered the behavior underlying Leitner's expunged convictions.

¶ 45. The only prohibition Leitner points to is the expungement statute, Wis. Stat. § 973.015. Accordingly, we are called on to determine whether § 973.015 prohibits a sentencing court from considering behavior underlying an expunged conviction and whether the statute directs law enforcement agencies, such as a district attorney's office, to destroy all records documenting the behavior underlying an expunged conviction.

¶ 46. The proper construction of a statute is a question of law. DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). We first look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986); see also State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). Only when statutory language is ambiguous may we examine other construction aids such as legislative history, context, and subject matter. Waalen, 130 Wis. 2d at 24. A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248.

¶ 47. Our review of Wis. Stat. § 973.015 reveals that the plain language of the statute does not prohibit a sentencing court from considering behavior underlying an expunged conviction. It reads:

(1) When a person is under the age of 21 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum penalty is imprisonment for one year or less in the county jail, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.
(2) A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation. Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.

Nothing in this statute tells a sentencing court that it may not consider behavior underlying an expunged conviction. Accordingly, if such behavior comes to the attention of a sentencing court through a means apart from government records, there is not even an arguable violation of § 973.015.

¶ 48. The question remains whether the expungement statute required the district attorney in this case to destroy his records relating to Leitner's expunged convictions.

¶ 49. Wisconsin Stat. § 973.015 itself is entirely silent regarding district attorneys' offices and other law enforcement agencies. It speaks only of the "court of record." Thus, there is nothing in the language of the expungement statute which directs law enforcement agencies to destroy records relating to an expunged conviction and no ambiguity to resolve.

¶ 50. Leitner points to dictum in State v. Anderson, 160 Wis. 2d 435, 466 N.W.2d 681 (Ct. App. 1991), in support of his interpretation. In Anderson, this court addressed whether an expunged conviction could be used as a "conviction" to impeach a witness pursuant to Wis. Stat. § 906.09(1). En route to rejecting a defense argument, this court in Anderson quoted the trial court in that case:

We are also persuaded by the circuit court's logic. The [circuit] court stated: "Clearly, the purpose of expungement is just that — to, in effect, obliterate the record of the individual. In fact, had the State followed it to the letter, what should have been done, their record should also have been destroyed regarding [the witness] . . . ."

Anderson, 160 Wis. 2d at 441. This statement need not be accorded weight because there was no need or attempt in Anderson to analyze whether Wis. Stat. § 973.015 required any entity to destroy records. See State v. Sartin, 200 Wis. 2d 47, 60 n.7, 546 N.W.2d 449 (1996) ("Dicta is a statement or language expressed in a court's opinion which extends beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it.").

¶ 51. Moreover, dictum from our supreme court suggests that Wis. Stat. § 973.015 is directed only at court records. In Breier v. E.C., 130 Wis. 2d 376, 387 N.W.2d 72 (1986), the supreme court addressed the authority of circuit courts to order police agencies to destroy juvenile records. Along the way, the court examined § 973.015 and said: "[T]he legislature has determined that the only records which may he expunged are court records .... In this situation, the [circuit] court may expunge only the court records, and then, only if the court determines that the person will benefit and society will not be harmed by this disposition." Breier, 130 Wis. 2d at 384-85.

¶ 52. Our application of the plain language rule of construction does not lead to an absurd interpretation of the statute. See State v. Yellow Freight Sys., Inc., 101 Wis. 2d 142, 153, 303 N.W.2d 834 (1981) (the plain language of the statute should not be construed in a manner that results in absurd or unreasonable consequences). Our decision does not undermine several significant benefits conferred by the statutory directive that the conviction itself is expunged. For example, an expunged conviction is not a conviction for purposes of impeaching a witness with a prior conviction. Anderson, 160 Wis. 2d at 440-41.

¶ 53. In summary, we hold that Wis. Stat. § 973.015 does not require law enforcement agencies, such as a district attorney's office, to destroy records relating to an expunged conviction. Further, § 973.015 does not prohibit sentencing courts from considering behavior underlying expunged convictions.

By the Court. — Judgment and order affirmed.

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

        See, e.g., State ex rel. Sieloff v. Golz, 80 Wis. 2d 225, 241-42, 258 N.W.2d 700 (1977); Shawn B.N. v. State, 173 Wis. 2d 343, 356, 497 N.W.2d 141 (Ct. App. 1992).


author: FINE, J.

text:
    Darrell Harding, Plaintiff-Counterclaim-Defendant-Joint-Appellant-Cross-Respondent, v. Dr. Parmod Kumar, Defendant-Third-Party Plaintiff-Counterclaim-Plaintiff-Respondent-Cross-Appellant, v. BSTV Inc., d/b/a Realty Executives and Chicago Insurance Co.,Third-Party Defendants-Joint-Appellants-Cross-Respondents, Julius Kaulfuerst and Best Properties, Inc., Third-PartyDefendants.
    Court of Appeals

      No. 99-2030.

      Submitted on briefs June 5, 2001. —
    Decided July 17, 2001.

    2001 WI App 195
    (Also reported in 633 N.W.2d 700.)

      On behalf of the plaintiff-counterclaim-defendant-joint-appellant-cross-respondent, the cause was submitted on the brief of John R. Sosey of Schwei & Wendt, S.C., Brookfield.
    On behalf of the defendant-third-party plaintiff-counterclaim-plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of Charles H. Barr of Croen & Barr LLP, Milwaukee.
    On behalf of the third-party defendants-joint-appellants-cross-respondents, BSTV^ Inc., d/b/a Realty Executives and Chicago Insurance Co., and on behalf of the plaintiff-counterclaim-defendant-joint-appellant-cross-respondent, Darrell Harding, the cause was submitted on the joint briefs of Wendy G. Gunderson of Bren, Przybeck & Stotler, Milwaukee and John T. Bode of Bode, Carroll, McCoy, Hoefle & Mihal, Waukesha, and Jennifer A. Slater Carlson of Otjen, Van Ert, Lieb & Weir, S.C., Milwaukee.
    Before Wedemeyer, EJ., Fine and Curley, J.J.

       Petition to review denied 10-23-01.

   FINE, J.

¶ 1. The disputes in this case arose out of a real estate transaction. Darrell Harding sued Parmod Kumar, seeking to recover on a note that Harding alleged had been assigned to him by the person to whom Kumar had given the note. Kumar answered Harding's complaint and counterclaimed. Kumar also sued BSTY Inc., d/b/a Realty Executives, Harding's employer, and Chicago Insurance Company, BSTV's liability carrier, as well as Julius Kaulfuerst, alleged to be an employee of BSTY as third-party defendants. No separate claim was asserted against Chicago Insurance. Kaulfuerst is not a party to this appeal and cross-appeal.

¶ 2. Although the parties have briefed the merits of the underlying disputes, we cannot reach the merits unless we have jurisdiction over these appeals. There are two preliminary issues that affect our jurisdiction, and these revolve around an order for judgment dated October 22, 1998, two judgments dated December 1, 1998, purporting to be entered on that order for judgment, and a new judgment, dated July 28, 1999, also purporting to be entered on the October 22 order for judgment. The first issue is whether Kumar could have appealed from the December 1 judgments. The second issue is if Kumar could have appealed from the December 1 judgments, can he also appeal from the July 28, 1999, judgment. We conclude that Kumar could have appealed from the December 1 judgments, but he filed his notice of appeal too late, and that, for the reasons explained below, he cannot now appeal from the July 28 judgment.

¶ 3. On October 22,1998, the trial court entered a document denominated "ORDER FOR JUDGMENT." As relevant to this appeal, that order did the following:

• granted motions for summary judgment brought by BSTY Chicago Insurance, Harding, and Kaulfuerst on Kumar's claims against them;
• ordered "that judgment be entered dismissing all [of Kumar's] claims against" BSTY Chicago Insurance, Harding, and Kaulfuerst "in the above-referenced matter upon the merits and with prejudice";
• ordered Kumar "to pay to the third-party defendants [BSTY Chicago Insurance, and Kaulfuerst] and the plaintiff [Harding], on [Kumar's] counterclaim, statutory costs and fees pursuant to secs. 814.03 and 814.04, Stats."; and
• granted summary judgment to Kumar on Harding's claims, directed Harding to pay to Kumar "$11,843.84, plus statutory costs and fees pursuant to secs. 814.03 and 814.04, Stats.," and directed that a judgment be entered dismissing Harding's claims against Kumar on "the merits with prejudice."

On December 1, 1998, the trial court entered two documents denominated "JUDGMENT." Each was signed by the Judgment Clerk in Milwaukee County for the clerk under the heading "BY THE COURT:" The first judgment recited and provided:

The above captioned action having been brought before this Court, the Honorable Jacqueline D. Schell-inger, presiding, on Motions for Summary Judgment, on August 31, 1998, and the Court having issued its Order for Judgment on October 22, 1998.
NOW, THEREFORE, IT IS HEREBY ADJUDGED AND DECREED, that the third party defendant [sic, should be counterclaim defendant], Darrell Harding, shall have a judgment against the third party plaintiff [sic should be counterclaim plaintiff], Parmod Kumar, for statutory costs and disbursements in the amount of $1,298.81.

The second judgment recited and provided:

Pursuant to the court's order for judgment dated October 22, 1998,
JUDGMENT IS HEREBY GRANTED in favor of the third-party defendants, BSTV[ Inc. d/b/a Realty Executives, as against the defendant and third-party plaintiff, Parmod Kumar, in the amount of $1,527.95, representing taxable costs pursuant to secs. 814.01 and 814.04, Stats.

A November 5, 1998, judgment was entered directing Harding to pay Kumar $11,843.84 plus costs, and dismissing Harding's claims against Kumar.

¶ 4. On December 4 and 10,1998, Kumar's lawyer was timely sent notices of entry of the December 1, 1998, judgments. On January 18, 1999, Kumar filed with the circuit court a notice of appeal "from that portion of the final judgment order in case no. 95 SC 008550 entered on October 22, 1998, in Milwaukee County, Judge Jacqueline Schellinger presiding, in which the court dismissed defendant/third party plaintiffs [Kumar's] complaint." On February 9, 1999, Harding filed a "cross-appeal" from the November 5, 1998, judgment.

¶ 5. Kumar does not contend that his January 18, 1999, notice of appeal gives us jurisdiction: First, the October 22, 1998, order for judgment was not a final, appealable order. See Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 493, 326 N.W.2d 240, 241 (1982) (whether an order is final turns on whether "the circuit court contemplated the order to be a final order at the time the order was entered"). Second, Kumar's notice of appeal was filed more than forty-five days after the December 1, 1998, judgments were entered. See Wis. Stat. § 808.04(1) (timely notice of entry of judgment shortens time within which to appeal to forty-five days). In an order entered by a three-judge panel of this court on April 3, 2000, we determined that not only was Kumar's attempted appeal from the trial court's rulings adverse to him untimely, but that Harding's "cross-appeal" from the November 5, 1998, judgment was also untimely. Neither Kumar nor Harding contests these rulings.

¶ 6. On March 30, 1999, new counsel for Kumar sent to the Milwaukee County judgment clerk a newly drafted judgment that purported to reflect more accurately the trial court's October 22, 1998, order for judgment than did the December 1,1998, judgments. In a cover letter, Kumar's new lawyer argued that each December 1, 1998, judgment was "deficient in that it fails to dispose of the underlying causes of action by the third-party plaintiff, Parmod Kumar. In addition, no judgment had been entered with respect to third-party defendant Chicago Insurance Co." Lawyers for Harding, BSTV and Chicago Insurance objected to the entry of the new judgment.

¶ 7. The trial court held a hearing on the objections lodged by Harding, BSTY and Chicago Insurance to entry of the new judgment, and, in a written decision and order dated June 16,1999, permitted its entry. The trial court noted that although Wis. Stat. § 806.01(l)(b) provides that "[e]ach judgment shall specify the relief granted," the December 1, 1998, judgments only taxed costs against those parties against whom the trial court ruled in its October 22, 1998, order for judgment, and did not, in the trial court's words, "specify that the claims brought by Dr. Kumar as against the plaintiff [Harding] and the third-party defendants [BSTY Chicago Insurance, and Kaulfuerst] are dismissed, as contemplated by the October 22, 1998 Order for Judgment." In light of this, the trial court concluded that "Kumar is entitled to enter an additional judgment in this action." The trial court did not specify whether it was acting under Wis. Stat. Rule 806.07 (relief from judgment or order), some other provision of law, or its inherent power. None of the parties addresses this issue.

¶ 8. On July 28, 1999, the new judgment was entered, as stated in its preamble, "[i]n accordance with the court's order for judgment, dated October 22, 1998, as supplemented by its Memorandum Decision and Order dated June 16, 1999." It recited that the judgment was being "ENTERED as follows: In favor of the counterclaim defendant Darrell Harding and third-party defendants BSTY Inc. d/b/a Realty Executives, Chicago Insurance Company, and Julius Kaulfuerst, and against the third-party plaintiff, Parmod Kumar, dismissing the counterclaim and third-party complaint with prejudice."

¶ 9. Although the trial court's June 16 Memorandum Decision and Order directed in the "order" part that Kumar "may enter judgment in this action dismissing his claims against the third-party defendants, BSTV Inc. d/b/a Realty Executives, Chicago Insurance Company and Julius Kaulfuerst, and against the counterclaim defendant, Darrell Harding, with prejudice, pursuant to the October 22, 1998 Order for Judgment" (emphasis added), BSTVJ Chicago Insurance, and Harding have appealed from that order. Additionally, Harding, in his capacity as plaintiff, filed, on September 21, 1999, a document denominated "NOTICE OF CROSS APPEAL," which purported to appeal from the November 5,1998, judgment. We pass the intriguing questions of whether the trial court's June 16 Memorandum and Order is a final order, and whether Harding's belated attempt to appeal from the November 5, 1998, judgment is timely, without comment because the answers are not material to our decision. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663, 665 (1938) (only dispositive issue need be addressed).

¶ 10. The focus of our attention is on whether the December 1, 1998, judgments were "final" as that term is used in Wis. Stat. § 808.03(1). This presents an issue of law that we decide de novo. See Truttschel v. Martin, 208 Wis. 2d 361, 364-365, 560 N.W.2d 315, 317 (Ct. App. 1997). Under § 808.03(1), as material here: "A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one of more of the parties." As Radoff teaches, this requires an analysis of "not whether a subsequent document exists but whether the circuit court contemplated the order [or judgment] to be a final order [or judgment] at the time the order [or judgment] was entered." Radoff, 109 Wis. 2d at 493, 326 N.W.2d at 241. In making this determination, we must look "at the document itself, not to subsequent events." Ibid. (quoted source omitted). If the words are words of finality, then it makes no difference that the judgment could have been better written or better structured. See Eau Claire County v. Employers Ins. of Wausau, 146 Wis. 2d 101, 103-112, 430 N.W.2d 579, 579-583 (Ct. App. 1988) (that a consolidated final judgment could have been entered rather than two separate final judgments did not permit trial court to vacate the two judgments and consolidate them into one judgment when that was done "to essentially expand the time for appeal when the time for such appeal had passed") (applying erroneous exercise of discretion standard of review of trial court's action of Wis. Stat. Rule 806.07).

¶ 11. As we have seen, the trial court based its decision on its determination that the December 1, 1998, judgments did not, in its view "specify the relief granted," as required by Wis. Stat. § 806.01(l)(b). But the judgments did specify the relief granted: they awarded statutory costs against Kumar in favor of the parties whose claims the trial court's October 22, 1998, order for judgment directed be dismissed, with the exception of Chicago Insurance. On their face, the December 1, 1998, judgments did not envision that a subsequent document would be entered — they stand as stark and plain (albeit truncated) declarations of finality. Indeed, Kumar's new counsel conceded this during the hearing on whether he should be permitted to enter a new judgment: "This is a perfectly final judgment for costs and if [Kumar's original lawyer] wanted to on behalf of Mr. Kumar wanted to [sic] appeal from that judgment for costs, he missed the boat. He's late. I'm saying [the] judgment is final, but it's not complete." Although the December 1, 1998, judgments were "not complete," Wis. Stat. Rule 809.10(4) provides that "[a]n appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon." Thus, had Kumar's appeal from the December 1, 1998, judgments been timely, he could have attacked not only the award of costs encompassed by the specific language of those judgments, but also the substance of the trial court's order directing that his claims against BSTV Chicago Insurance, and Harding be dismissed. This is true even though Chicago Insurance was not mentioned in the December 1, 1998, judgments because its lack of liability was purely derivative of BSTV's status; a determination that BSTV and its employees were not liable to Kumar was, per force, also a determination that Chicago Insurance was not liable to Kumar. See Trainor v. Aztalan Cycle Club, Inc., 147 Wis. 2d 107, 122, 432 N.W.2d 626, 633 (Ct. App. 1988). Stated another way, a successful appeal of the December 1, 1998, judgment in connection with Kumar's claims against BSTV would bring to the Court of Appeals the trial court's October 22, 1998, order and this would affect Kumar's claims against Chicago Insurance.

¶ 12. "[A] circuit court has no authority to vacate and reenter an order or judgment when its sole basis for doing so is the unadorned desire to allow an appeal." Edland v. Wisconsin Physicians Serv. Ins. Corp., 210 Wis. 2d 638, 647, 563 N.W.2d 519, 522 (1997) (recognizing an exception when trial court's error precludes party from appealing). If Kumar's appeal from the December 1, 1998, judgments had been timely, (and if Harding's cross-appeal had also been timely) all of the trial court's determinations in its October 22, 1998, order for judgment would have been in play on appeal. Unlike a situation where an order directs that a judgment be entered awarding a successful litigant his or her damages or fair compensation, the only dollar amounts that were due any party in connection with Kumar's claims were those set out in the December 1, 1998, judgments. Thus, nothing was left to do in connection with those judgments but their execution; as Kumar's lawyer conceded at the hearing, the judgments were final. Cf. American Civil Liberties Union of Wisconsin Inc. v. Thompson, 155 Wis. 2d 442, 447, 455 N.W.2d 268, 270 (Ct. App. 1990) (reserving fee issue does not render judgment nonfinal). Certainly, no one would contend that Kumar's claims against BSTVJ Chicago Insurance, and Harding survived the December 1, 1998, judgments, irrespective of how unartful the drafting. That, in our view, is the test — at least under these circumstances.

¶ 13. In sum, we hold that the December 1, 1998, judgments were final, appealable judgments. Accordingly, the trial court's attempt to start the appeal-clock anew via its June 16, 1999, decision and order was a nullity, as was the new July 28,1999, judgment entered thereon. Accordingly, we dismiss as moot the appeal by BSTy Chicago Insurance, and Harding (in his capacity as counterclaim defendant) from the June 16, 1999 decision and order, Kumar's "cross-appeal" from the July 28, 1999, judgment, and Harding's (in his capacity as plaintiff) new "cross-appeal" from the November 5, 1998, judgment.

By the Court. — Appeal and cross-appeals dismissed.

       WISCONSIN Stat. § 806.01(l)(b) also requires that each judgment recite "the name and place of residence of each party to the action." Although not mentioned by the trial court, the December 1,1998, judgments were also deficient in this respect.

       The holding in American Civil Liberties Union of Wisconsin Inc. v. Thompson, 155 Wis. 2d 442, 455 N.W.2d 268 (Ct. App. 1990), was narrowed but not overruled by Edland v. Wisconsin Physicians Service Insurance Corp., 210 Wis. 2d 638, 648, 563 N.W.2d 519, 522-523 (1997).