author: WEDEMEYER, PJ.

text:
    State of Wisconsin, Petitioner-Respondent, v. Robert M. Fowler, Respondent-Appellant.

    Court of Appeals

      No. 03-3158.

      Submitted on briefs December 7, 2004.

    Decided February 8, 2005.

    2005 WI App 41
    (Also reported in 694 N.W.2d 446.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Randall E. Paulson, assistant state public defender, Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Sandra L. Nowak, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Kessler, JJ.

       Petition to review filed.

   WEDEMEYER, PJ.

¶ 1. Robert M. Fowler appeals from an order dismissing his petition for discharge pursuant to Wis. Stat. § 980.09(2) (2003-04). He claims the trial court erred when it concluded there was probable cause to believe that the facts do not warrant a discharge hearing as to whether he was still a sexually violent person. Because there are substantial grounds in the record to support the trial court's conclusion that Fowler did not establish probable cause to believe that he is not a sexually violent person, and therefore is not entitled to an evidentiary hearing, we affirm.

BACKGROUND

¶ 2. On July 9, 1997, the State of Wisconsin filed a chapter 980 petition seeking to commit Fowler. A jury found him to he a sexually violent person. After a hearing on December 2, 1999, Fowler was committed for treatment at Sand Ridge Secure Treatment Center. An appeal challenging the commitment was unsuccessful and a petition for review to the supreme court was denied.

¶ 3. On January 9, 2003, Dr. James Harasymiw filed a chapter 980.07-.08 re-examination report along with a Patient's Rights Disclosure Notice signed by Fowler, a Notice of Right to Petition for Discharge, a Waiver of Right to Petition for Discharge, and a cover letter stating that Fowler elected not to sign the Waiver of Right to petition for a discharge. In accord with Wis. Stat. § 980.09(2)(a), a probable cause hearing was held to determine whether Fowler was still a sexually violent person. The hearing took place on September 5, 2003. Pursuant to § 980.09(2)(a), Fowler was not present at the hearing.

¶ 4. Dr. Harasymiw's re-examination report filed January 9, 2003, was based upon a prior chapter 980 evaluation which included treatment records, progress reports and results of various tests. Fowler declined to be examined. The report concluded that Fowler had a mental disorder, anti-social personality disorder, which predisposed him to acts of sexual violence.

¶ 5. The doctor concluded that:

When all of these factors, including the PCL-R, RRA-SOR, Static99, and SRA Steps Two and Three, are considered regarding Mr. Fowler and analyzed in light of Ch.980 WSS, data indicate that he does not show a substantial decrease in the degree of risk he presents were he to be released from secure confinement at this time. The pattern of results from the risk assessment instruments would indicate that issues related to psychopathy are the major driving force in Mr. Fowler's sexual offending and are resistive to change.

¶ 6. The report concluded that while Fowler had made progress (at least with impulse control) his "efforts have been insufficient to make a significant change in his status since the last evaluation." Thus, he concluded that neither discharge nor supervised release was appropriate.

¶ 7. After arguments by counsel, the trial court concluded there was a lack of "probable cause" required to obtain a discharge hearing. On September 23, 2003, the trial court entered a written order effectuating its oral decision. Fowler has now timely appealed from that order.

ANALYSIS

¶ 8. The question to be answered by a trial court at a Wis. Stat. § 980.09(2) (a) probable cause hearing is whether probable cause exists to establish that an individual seeking discharge is no longer a sexually violent person. See State v. Schiller, 2003 WI App 195, ¶ 9, 266 Wis. 2d 992, 669 N.W.2d 747. Whether the facts establish probable cause to believe a person is no longer a sexually violent person is a question of law which we determine independently of the trial court.

¶ 9. In State v. Paulick, 213 Wis. 2d 432, 570 N.W.2d 626 (Ct. App. 1997), this court discussed the required procedures for the probable cause hearing under Wis. Stat. § 980.09(2)(a). We concluded that chapter 980 provides for an annual review for individuals who have been adjudicated sexually violent and placed in a secure institutional setting. Paulick, 213 Wis. 2d at 434. The statute affords a committed person the right to petition for release, with the trial court acting "as the gatekeeper weeding out frivolous petitions by committed persons who allege that they are no longer dangerous and are fit for release." Id. We further concluded that § 980.09(2)(a) "does not contemplate an evidentiary-type hearing like that provided in [Wis. Stat.] § 980.09(2)(b). Rather, the probable cause hearing is a paper review of the reexamination report(s) with argument that provides an opportunity for the committing court to weed out frivolous petitions . . . ." Paulick, 213 Wis. 2d at 438-39.

¶ 10. More recently, in State v. Thiel, 2004 WI App 140, 275 Wis. 2d 421, 685 N.W.2d 890, we held that "probable cause to believe a person is no longer a 'sexually violent person' is not satisfied by a recommendation of supervised release without more." Id., ¶ 21. We explained that while a recommendation for supervised release may give rise to a reasonable inference that the committed person was not substantially probable to re-offend if placed on supervised release, such a recommendation was not relevant to the question before the court and did not, "standing alone, supply the probable cause necessary to warrant a full evidentiary hearing on the matter." Id. We further explicated:

By the plain language of the statute, the question at the probable cause hearing is not whether the individual is substantially probable to engage in acts of sexual violence if placed on supervised release or even if discharged from commitment; the statute draws no such distinction. Rather, the question at the probable cause stage is simply whether it is substantially probable that the person will engage in acts of sexual violence without regard to any specific restrictions, supervision or time frame. It is a black-and-white determination — it is either substantially probable that the person will engage in acts of sexual violence or it is not.

Id., ¶ 17.

¶ 11. We deem the probable cause determination under Wis. Stat. § 980.09(2)(a), to be the same as a probable cause determination in the circumstance of a criminal bindover proceeding and accordingly, subject to the same standards of review. Thus, upon review:

"The reviewing court can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence."

State v. Berby, 81 Wis. 2d 677, 684, 260 N.W.2d 798 (1978) (citation omitted).

¶ 12. We now summarize the re-examination reports that were before the court for a determination of probable cause to discover whether there was competent evidence for the judicial mind to act upon in determining the existence of the essential facts necessary for a finding of probable cause that Fowler was not still a sexually violent person. Dr. James Harasymiw, Ph.D. of the Wisconsin Department of Health and Family Services, submitted a report on behalf of the State, and Dr. Lynn Maskel, M.D., M.S. submitted a report on behalf of Fowler. Both reports addressed not only whether Fowler was a suitable candidate for discharge but also supervised release.

¶ 13. Dr Harasymiw's report consisted of eight and one-half pages. By way of background, Harasymiw noted that Fowler had an extensive criminal record. Included in this record were three sexually-related offenses. "One of these was 2nd degree sexual assault and the other two were charges of false imprisonment due to the fact that the acts were interrupted by a passerby or police." These offenses occurred a short time after his release from prison and while he was on community supervision. The records revealed that the occasions for sex offender treatment "were marked by lack of motivation and resultant failure to benefit from the involvement." Staffing notes reflected his current involvement in the Corrective Thinking phase of Sex Offender Treatment on a regular basis, but his participation is only superficial for the reasons stated.

¶ 14. The report related that Fowler's behavior in the unit in which he lives was "mostly compliant." He did, however, get angry when confronted with violations of the unit's procedures. He complained about treatment programs and questioned their worth. He was not considered by the staff to be a troublemaker and exhibited a positive attitude.

¶ 15. As to the issue of the presence of a mental disorder, the Harasymiw report, based upon past assessments and current treatment records, opined that Fowler suffered from an Axis I, Polysubstance Dependence in a controlled environment and Axis II Antisocial Personality Disorder, "each of which substantially affects his cognitive and/or volitional processes." The report noted that while the "diagnosis [of dependence] did not predispose Mr. Fowler to commit sexually violent acts, as defined by Chapter 980 his history demonstrates that it may have had a facilitating role in these acts."

¶ 16. The Axis II diagnosis classified Fowler as having Antisocial Personality Disorder. This classification implied that Fowler suffers from a "long-term maladaptive pattern of behavior involving a disregard for and violation of the rights of others, failure to conform to social norms, impulsivity, aggressiveness and a disregard for the safety of himself and others." The report observed: "In Mr. Fowler's case this pattern manifested in his early teens through such acts as substance abuse and theft and later robbery[,] physical assault[,3 and coerced sexual acts." Under this consideration, the examiner opined that "this disorder does predispose Mr. Fowler to engage in acts of violence including sexual violence, as defined by Chapter 980, and represents a mental disorder as defined by that statute."

¶ 17. Dr. Harasymiw set forth the sex offender risk assessment methods that he used in examining Fowler. He applied Hanson's Rapid Risk Assessment for Sex Offense Recidivism (RRASOR) from which he concluded Fowler was in a group that showed a 36.9% reconviction rate at ten years, a medium high level of risk for sexual recidivism.

¶ 18. He next used the Hare Psychopathy Checklist-Revised (PCL-R) to determine whether Fowler was psychopathic. Here, Harasymiw found Fowler's rating showed "significant psychopathy." He then concluded that "[w]hen a high degree of sexual deviance co-exists with a high degree of psychopathy, the risk of recidivism, both sexual and violent, is high."

¶ 19. He further used the Structured Risk Assessment (SRA), which is a three-step process that includes a Static Risk Factor Assessment, a Deviance Assessment and an Assessment of Treatment Progress. In applying step one, Fowler was found to be a High Risk for Re-offense; applying step two, he was found to have made little treatment gain and still represented a high risk for sexual re-offending. Step three is utilized to "demonstrate whether a sex offender has changed to such a degree that his risk category may be revised."

¶ 20. In applying the factors which comprise this assessment step including the PCL-R, RRASOR, Static 99 and SRA Steps One and Two, Dr. Harasymiw concluded that the "data indicated that he does not show a substantial decrease in the degree of risk he presents were he to be released from secure confinement at this time." He finally concluded that "Mr. Fowler continues to show substantial probability that he will commit another sexually violent offense."

¶ 21. Dr. Maskel's report reflected the following. She reviewed the same record and file material as did Dr. Harasymiw in addition to the latter's report. Her report consisted of two and one-half pages. Dr. Maskel essentially disagreed with the fundamental conclusions reached by Dr. Harasymiw. We set forth these differences of opinion.

¶ 22. First, Dr. Maskel disputed the assertion that Fowler was involved in three instances of sexual assault. She conceded that a second-degree sexual assault occurred, but challenged the assertion that two others took place. This dispute appeared to be a difference of interpretation, with other examiners agreeing with Dr. Harasymiw.

¶ 23. Second, Dr. Maskel agreed that Fowler had an Antisocial Personality Disorder with a long-standing pattern of maladaptive character traits, but did not conclude that this disorder constituted a mental disorder that affected his emotional or volitional capacity or that it predisposed him to future sexually violent acts. She concluded that the Antisocial Personality Disorder present in Fowler appeared to show some amount of improvement. She projected that due to age attrition, there would be some reduction in symptom severity.

¶ 24. Third, Dr. Maskel disagreed that Fowler's score of 26 on the PCL-R can be used to either show significant psychopathy or that it can be predictive of sexually violent recidivism.

¶ 25. Fourth, Dr. Maskel disputed that the RRA-SOR or Static 99 alone or as a basis for SRA can be utilized as a predictive instrument for sexually violent recidivism. Additionally, she maintained that the scores obtained on the testing are too high.

¶ 26. Lastly, Dr. Maskel complained that Fowler's programming has been frequently changed before completion making it difficult for him to fulfill program requirements for a proper assessment.

¶ 27. In summary, Dr. Maskel opined that the diagnosis of Antisocial Personality Disorder did not support the requisite mental disorder under chapter 980 and, as such, Fowler would qualify for a recommendation for discharge.

¶ 28. Based on our review of the contents of the re-examining reports, there are not substantial grounds for the exercise of judgment by the trial court to conclude that Fowler is not still a sexually violent person. We thus affirm.

¶ 29. Wisconsin Stat. § 980.09(2)(a) states: "If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person." (Emphasis added.) Stated otherwise, is there probable cause that Fowler is not still a sexually violent person? We emphasize that the standard is couched in positive terms.

¶ 30. Dr. Harasymiw's report concludes that Fowler still is a sexually violent person. This was sufficient to support the trial court's conclusion that it was substantially probable that Fowler would engage in acts of sexual violence. Fowler argues that Dr. Maskel's report creates a question of fact sufficient to trigger a discharge hearing, at which the factfinder would decide whether Fowler was or was not a sexually violent person. This court disagrees with Fowler's assessment.

¶ 31. His suggestion ignores the review standards which govern our analysis. Moreover, Dr. Maskel's report did not stand squarely opposed to Dr. Harasymiw's assessment. Although Dr. Maskel disagreed with certain conclusions, she did not recommend discharge. Rather, she indicated that given Fowler's improvement with treatment, "supervised release (outpatient) setting, given that there is sufficient structure to the program" would be appropriate.

¶ 32. In Thiel, we held that supervision and restrictions were not the appropriate issues to be considering at the probable cause stage. 275 Wis. 2d 421, ¶ 17. Rather, we concluded that the question at the probable cause stage was black and white: is it substantially probable that the person will engage in acts of sexual violence or is it not. Id. Applying this rule to the review standard, we must conclude that the trial court did not err in denying Fowler's request for a discharge hearing. Our review demonstrates that the trial court had "substantial ground for the exercise of judgment" and competent evidence exists in the record for the trial court's decision. Dr. Harasymiw's assessment failed to provide probable cause for this court to conclude that the facts warrant a hearing on whether Fowler is still a sexually violent person. Accordingly, we affirm.

By the Court. — Order affirmed.

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

       Wisconsin Stat. § 980.09(2)(a) provides:
      Petition without secretary's approval, (a) A person may petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under s. 980.07 (1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the report of the department's examination under s. 980.07. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to he present at the probable cause hearing.

       Dr. Harasymiw concluded that Fowler was not a fit candidate for supervised release; whereas, Dr. Maskel concluded that he was fit for supervised release.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    James Adler and Doris Adler, Plaintiffs-Appellants, v. D&H Industries, Inc., David Lupton, and Howard Lee Arnson, Defendants-Respondents.

    Court of Appeals

      No. 04-0464.

      Oral argument January 11, 2005.

    Decided February 9, 2005.

    2005 WI App 43
    (Also reported in 694 N.W.2d 480.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Terry E. Johnson and Heidi M. Biasi of Peterson, Johnson & Murray, S.C., of Milwaukee. There was oral argument by Terry E. Johnson.

    On behalf of the defendants-respondents, the cause was submitted on the brief of J. Ric Gass, Amelia L. McCarthy and Beth Ermatinger Hanan of Gass, Weber & Mullins, LLC, of Milwaukee. There was oral argument by J. Ric Gass.

      Before Anderson, EJ., Brown and Snyder, JJ.

       Petition to review filed.

   BROWN, J.

¶ 1. This case is about Wisconsin's exception to the permissive counterclaim rule known as the "common-law compulsory counterclaim rule." When a subsequent action would serve to nullify the initial judgment or would impair the rights established in the initial action, then we will bar the subsequent action and rule that it should have been raised as a counterclaim in the first action. Here, however, the original action is still pending. Therefore, use of the common-law compulsory counterclaim rule by the circuit court to dismiss the second suit was error. We also hold that the alternative ground for dismissal, an insufficient complaint, was likewise error because the dismissal was on the merits. We reverse and remand with directions.

¶ 2. The parties agree on the essential facts of this case. On June 29, 2000, D&H Industries, Inc., David Lupton, and Howard Lee Arnson (collectively D&H), commenced suit against appellants James and Doris Adler. The complaint alleged several causes of action against the Adlers, including breach of contract and misrepresentation that induced the owners of D&H to enter into a commercial transaction with the Adlers. The transaction involved various business sales agreements involving, inter alia, the sale of a business, the purchase of commercial real estate, and the lease of certain property. The parties represent that the factual basis of the complaint concerned the Adlers' alleged failure to disclose to D&H prior hazardous substance spills that had occurred on some of the subject property.

¶ 3. D&H sought two forms of relief: contract damages and what the parties have termed "partial rescission." With respect to the latter, D&H asked the court to void all future payments owed pursuant to the business sales agreements. The Adlers did not assert any counterclaims, and trial was scheduled to begin on September 30, 2003.

¶ 4. On September 25, five days before trial, the Adlers filed their own separate action. Their complaint alleged that the parties had "entered into certain transactions relating to the sale of a business and lease of certain property" and that D&H had breached those agreements when it "failed to pay certain amounts due under those agreements." The payments due referred to the same amounts D&H had claimed were void in the first action. The first trial was adjourned for reasons irrelevant to this appeal.

¶ 5. D&H moved to dismiss on November 27, asserting that the Adlers' claim in the new action fell within the common-law compulsory counterclaim rule because a favorable judgment in their pending action would be nullified if the Adlers prevailed in their own action. The Adlers maintained that they were entitled to bring an independent action because the compulsory rule was a narrow exception to Wisconsin's broad rule favoring permissive counterclaims. The exception did not apply, they stated, while both actions were still pending. In the alternative, the Adlers moved the court either to consolidate both actions or to grant them leave to amend their pleadings in the original suit to add their claims as counterclaims.

¶ 6. The circuit court conducted a hearing on December 17 and ultimately dismissed the Adlers' action. The court gave two reasons for its decision. First, it found the complaint insufficient. At one point during the proceeding, the court stated:

It is, I think fairly if I were to describe it, a terse complaint. It does not incorporate by reference any other previously filed document, although because of my awareness of the other action I assume that it alludes to it and because of counsels' reference to it in their briefs it alludes to it. However, it is devoid of any reference to dates as to actions.

It also characterized the complaint as "relatively vague."

¶ 7. Second, the court agreed with D&H that the common-law counterclaim rule barred the Adlers from filing a new action. The circuit court found that although the 2000 action was in an inchoate state, "clearly the rub of the [2003] action filed on behalf of the Adlers is a repetition of matters that were already pled and raised in the [2000] matter." Given that (1) there had been "a format of this case which was cast in stone" and (2) the case would have proceeded to trial and been decided already had other delays unrelated to this case not removed it from the calendar, the court was "satisfied as a result in weighing the rule of the compulsory counterclaim that the basic premise behind it... to preserve . . . 'the integrity and finality of judgments and the litigants' reliance upon them'" required barring the Adlers' action in this case.

¶ 8. The original language in the order dismissed "on the merits, and with prejudice," but the court deleted the "with prejudice" reference when it signed the order, after the Adlers objected to that language. The Adlers subsequently filed a motion for reconsideration of the dismissal "on the merits." They argued that the removal of "with prejudice" indicated the case had been dismissed "without prejudice" and therefore not on the merits. The circuit court disagreed, asserting that the import of its ruling was to dismiss on the merits and by implication with prejudice. The Adlers appeal from the order that dismissed their claims.

¶ 9. We turn first to the circuit court's primary ground for dismissing the Adlers' suit, its determination that their claims fell within the common-law compulsory counterclaim rule notwithstanding Wisconsin's general permissive rule. The parties agree that Wisconsin generally does not require defendants to counterclaim in an action against them, instead favoring a policy that allows defendants, like plaintiffs, to assert their claims at the time and place of their choosing. See A.B.C.G. Enters., Inc. v. First Bank Southeast, N.A., 184 Wis. 2d 465, 476, 515 N.W.2d 904 (1994); Wis. Stat. § 802.07(1) (2003-04). Wisconsin. Stat. § 802.07(1) reads in pertinent part:

(1) COUNTERCLAIM. A defendant may counterclaim any claim which the defendant has against a plaintiff, upon which a judgment may be had in the action. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party.

¶ 10. The parties further agree that a common-law exception to that permissive rule nonetheless may bar some claims if the defendant attempts to bring them in a later action. They simply part company as to whether that exception applies to bar a second action while the original action remains pending. This issue presents a question of law that calls for our de novo review. See Kimps v. Hill, 200 Wis. 2d 1, 8, 546 N.W.2d 151 (1996) (proper scope of a common-law doctrine presented a question of law); State v. Brandt, 226 Wis. 2d 610, 618, 594 N.W.2d 759 (1999) (applying the appropriate legal standard to a set of facts presents a question of law we review independently).

¶ 11. Our supreme court in A.B. C. G. Enterprises, Inc., recognized that this common-law rule placed a narrow limitation on Wisconsin's broad permissive counterclaim statute. A.B.C.G. Enters., Inc., 184 Wis. 2d at 476-77. In A.B.C.G. Enterprises, Inc., the defendant, First Bank, had brought six separate foreclosure actions against the plaintiff, all of which had resulted in default judgments in favor of First Bank. Id. at 471. The plaintiff subsequently brought its own action, alleging that several actions on the part of First Bank caused it to default and sought compensatory damages resulting from the foreclosure. Id. at 471-72. The supreme court held that "principles of res judicata preclude a defendant who may counterclaim in a prior action from bringing a subsequent action on the claim if the action would nullify the initial judgment or impair rights established in the initial action." Id. at 480. Upon concluding that a favorable judgment for the plaintiff would so undermine the previous judgments, the court upheld the summary judgment against the plaintiff. See id. at 482-84.

¶ 12. The court's reasoning relied upon the common-law compulsory counterclaim rule as stated in the Restatement (Second) op Judgments § 22(2) (b) (1982). Section 22(2)(b) states in pertinent part:

(2) A defendant who may interpose a claim as a counterclaim in an action but fails to do so is precluded, after the rendition of judgment in that action, from maintaining an action on the claim if:
(b) The relationship between the counterclaim and the plaintiffs claim is such that successful prosecution of the second action would nullify the initial judgment or would impair rights established in the initial action.

(Emphases added.) See also A.B.C.G. Enters., Inc., 184 Wis. 2d at 477 (quoting the Restatement).

¶ 13. Restatement (Second) op Judgments § 22 comment f, also extensively quoted by the court, explains that § 2(b) recognizes the need to preclude defendants —even in jurisdictions that do not generally make counterclaims compulsory — from bringing subsequent actions that "would... plainly operate to undermine the initial judgment." See also A.B.C.G. Enters., Inc., 184 Wis. 2d at 477. According to the court, this rule protects "the integrity and finality of judgment's and the litigants' reliance on them." Id. at 477. The Restatement states that it is not enough that the counterclaim arises from the same transaction as the original claim; the counterclaim must be such that "its successful prosecution . . . would nullify the judgment." Restatement (Second) of Judgments § 22 cmt. f (emphasis added); see also A.B.C.G. Enters., Inc., 184 Wis. 2d at 477-78.

¶ 14. We further note that Restatement (Second) op Judgments § 22 comment f elaborates when a second action would sufficiently undermine a prior judgment so as to render the plaintiffs claim a compulsory counterclaim. It cites as examples instances in which the second judgment would allow the party bringing the virtual counterclaim to enjoin enforcement of the first judgment, to upset property rights settled in the first action, or to recover on a restitution theory amounts the party paid pursuant to the first judgment. See Restatement (Second) of Judgments § 22 cmt. f. The comment emphasizes that

[o]rdinarily, the conclusion that the subsequent action could not be maintained under Subsection (2)(b) would not be reached unless the prior action had eventuated in a judgment for plaintiff since only in such a case would there be the threat of nullification of the judgment or of impairment of rights to which the Subsection is addressed.

Restatement (Second) of Judgments § 22 cmt. f (emphases added).

¶ 15. Based on the foregoing, we conclude that the common-law exception requires a final judgment in the initial action. Both parties recognize the potential for inconsistent judgments, at least insofar as they agree that D&H's partial rescission remedy is inconsistent with the Adlers' breach of contract claim. However, we do not know whether D&H will prevail in the initial action. Thus, at this point it is clear only that the judgment for D&H in the first action could later be nullified by a judgment favorable to the Adlers in the second action, not that it would be so undermined if the Adlers succeed. At this point, it is premature to deem the Adlers' claims compulsory.

¶ 16. D&H relies heavily on Green Spring Farms v. Spring Green Farms Associates Ltd. Partnership, 172 Wis. 2d 28, 492 N.W.2d 392 (Ct. App. 1992), for the proposition that no final judgment in the first-filed action is necessary. In Green Spring Farms, we held that because collateral estoppel would operate to bar the defendant from bringing his own independent action, he was compelled to raise his counterclaims in the instant suit in order to preserve them; thus, his assertion of those counterclaims in the circuit court did not waive his right to try them to a jury. Id. at 31. D&H reads this case to mean "collateral estoppel principles render certain counterclaims compulsory."

¶ 17. As we noted above, the common-law compulsory counterclaim exception focuses on whether a second judgment would nullify or otherwise impair an already existent judgment. Whether this nullification concept includes collateral estoppel principles is an issue we need not reach, however, because collateral estoppel also requires a final judgment, a circumstance not present in this case. See State v. Kramsvogel, 124 Wis. 2d 101, 121, 369 N.W.2d 145 (1985) (Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Emphasis added.)). Green Spring Farms was no exception to this rule. The action had proceeded to judgment already. See Green Spring Farms, 172 Wis. 2d at 31. The defendant only appealed that judgment to the extent that it dismissed his counterclaims. See id.

¶ 18. We next reach the insufficiency ground for dismissing the plaintiffs' suit. The Adlers did not appeal that basis for dismissal in their main brief. D&H urges that we can affirm the circuit court's order on that basis alone. They correctly state the general rule that we will consider abandoned any issues not raised on appeal. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998). Moreover, we agree that for purposes of this rule, a party does not adequately raise an issue when it does not raise that issue in the brief-in-chief. Id. at 491-92.

¶ 19. Although we acknowledge that we could deem the insufficiency ground waived, we will not do so. The waiver rule is purely administrative and does not affect our power to address an issue not raised in the briefs if we so choose. Id. at 493. Here we do choose to overlook the waiver. The dismissal here was on the merits; unless this disposition was proper, our failure to review would unnecessarily leave the Adlers without a forum in which to litigate their controversy.

¶ 20. The sufficiency of a complaint presents a question of law mandating our de novo review. Green v. Heritage Mut. Ins. Co., 2002 WI App 297, ¶ 10, 258 Wis. 2d 843, 655 N.W.2d 147, review denied, 2003 WI 16, 259 Wis. 2d 101, 657 N.W.2d 707 (No. 01-2778). Wisconsin is a notice-pleading state. Id., ¶ 19. Thus, in reviewing the complaint's sufficiency, we examine whether it contains sufficient details to give the defendant and the court a fair idea of what the plaintiff is complaining about. Id. Although we construe the pleadings liberally, we look only at the four corners of the complaint. Heinritz v. Lawrence Univ., 194 Wis. 2d 606, 610-11, 614, 535 N.W.2d 81 (Ct. App. 1995).

¶ 21. We agree with the circuit court that this complaint was clearly lacking. It refers to "certain transactions" involving the sale of a business and lease of "certain property" for which D&H allegedly owes the Adlers "certain amounts due." This information simply does not suffice to reasonably inform a defendant or a court what transactions or amounts are at issue. We do not buy the Adlers' contention, before the circuit court and at oral argument in this court, that given the context of this case — i.e., the transactions at issue were already being litigated in the 2000 action and had been for years — the defendants should have known what they were talking about. The transactions and amounts at issue must be ascertainable from the four corners of the complaint. As the circuit court noted:

It is, I think fairly if I were to describe it, a terse complaint. It does not incorporate by reference any other previously filed document, although because of my awareness of the other action I assume that it alludes to it and because of counsels' reference to it in their briefs it alludes to it. However, it is devoid of any reference to dates as to actions. (Emphases added.)

Clearly, the circuit court was being asked to go outside the four corners of the complaint in order to ascertain what transactions and amounts were at issue. For the reasons just stated, we agree that the circuit court was justified in dismissing the complaint for lack of sufficiency.

¶ 22. Nonetheless, a dismissal on the merits was clearly improper. See Town of Iron River v. Bayfield County, 106 Wis. 587, 591, 82 N.W. 559 (1900) (stating that the judgment appealed from was "merely an adjudication of the insufficiency of the complaint; that it decides none of the merits"); Taylor v. Matteson, 86 Wis. 113, 122-23, 56 N.W. 829 (1893). But see O'Brien v. Hessman, 16 Wis. 2d 455, 459, 114 N.W.2d 834 (1962) (dismissal on merits may be entered if plaintiff fails to replead). The case should have been dismissed without prejudice with an opportunity for the Adlers to plead over. See Taylor, 86 Wis. at 122. We recognize that, given the circuit court's dismissal on the merits due to the compulsory counterclaim issue, dismissal without prejudice due to an insufficient complaint would have been senseless. Still, in light of the result in this appeal, the dismissal on the merits must now be remedied.

¶ 23. That said, we conclude that, at this stage, dismissing the case would simply waste time. Rather than remanding with directions that the case be dismissed without prejudice with leave to allow the Adlers to start a new action, we hold that the Adlers may simply submit amended pleadings that will, we hope, remedy the defect. Further, to avoid a race to judgment between the original action and the second action, an outcome which we view as abhorrent to our system of justice, we order that the circuit court hold the second action in abeyance until the original action reaches final judgment. We note that, at oral argument, counsel for the Adlers explicitly voiced no objection to our authority to so order if we deemed it advisable.

¶ 24. D&H has expressed concern that because numerous contract provisions are in dispute and the two cases might end up being tried to different juries, it may not be clear exactly to what extent the successful prosecution of the second action would conflict with the first judgment. However, there is nothing theoretically difficult about comparing a judgment in the first case to the complaint in a later action. D&H's concerns are largely logistical matters. It may work out with the circuit court in the original action appropriate means to ensure that the judgment clearly reflects the issues decided.

¶ 25. We reverse the circuit court's order dismissing the complaint. Given that the 2000 action has not resulted in final judgment in D&H's favor, it is simply premature to conclude that the common-law compulsory counterclaim rule required the Adlers to assert their claims as counterclaims in the original suit. We agree that the complaint was insufficient, but the dismissal on the merits was inappropriate. Moreover, given that our holding would normally allow the Adlers to draft a new complaint were we to affirm dismissal based on this one, judicial economy favors simply allowing the Adlers to amend their pleadings. In order to avoid a race to the courthouse, however, we instruct the circuit court to accept new pleadings and to stay this action pending the outcome of the original suit.

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

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

       All references to the Restatement (Second) of Judgments are to the 1982 version unless noted otherwise.


author: HOOVER, EJ.

text:
    Russell Allen, Plaintiff-Respondent-Cross-Appellant, v. Wisconsin Public Service Corporation, Defendant-Appellant-Cross-Respondent.

    Court of Appeals

      No. 03-2690.

      Submitted on briefs November 30, 2004.

    Decided February 15, 2005.

    2005 WI App 40
    (Also reported in 694 N.W.2d 420.)

      On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Trevor J. Will, Kevin P. Whaley, and Eric L. Maassen of Foley & Lardner, LLP of Milwaukee.
    On behalf of the combined brief of plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of Daniel P. Murray and B.J. Hammarback of Hammarback, Murray & Jacobson S.C. of River Falls, and Scott Lawrence oí Lawrence & Des Rochers of St. Nazianz.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 7-28-2005.

   HOOVER, EJ.

¶ 1. Wisconsin Public Service Corporation (WPS) appeals a judgment that it negligently damaged Russell Allen's dairy business with stray voltage and that WPS's electrical distribution system was a nuisance. WPS argues (1) the trial court erred when it determined that Allen took reasonable steps to discover the cause of the damage thereby removing WPS's statute of limitations defense from jury consideration; (2) the jury's award for nuisance damages is improper because Allen is not entitled to nuisance damages; and (3) if Allen is entitled to nuisance damages, the jury's million dollar award should be reduced. We conclude the trial court correctly determined that Allen took reasonable steps to discover the cause of the damage. We next conclude that WPS failed to object to the jury instruction regarding nuisance and therefore failed to preserve for appeal the right to contest the basis for the award. Finally, we conclude the evidence supports the amount of the jury's award for nuisance damages.

¶ 2. Allen cross-appeals, arguing he is entitled to (1) treble damages because WPS's failure to identify stray voltage was willful, wanton or in reckless disregard of Allen's rights and (2) an injunction requiring WPS to eliminate stray voltage from his farm. We conclude that Allen is not entitled to treble damages because WPS made sufficient efforts to discover the stray voltage. Regarding the injunction, we conclude the trial court failed to take into account whether Allen's damage award included amounts for future damages. We remand to the trial court to make that finding. Accordingly, we affirm in part, reverse in part and remand with directions.

BACKGROUND

¶ 3. Allen first experienced problems on his dairy farm in 1976 when he moved his herd to a new barn and was not satisfied with the cows' milk production. However, he was unable to locate the source of the problem. By 1988, he suspected stray voltage and asked WPS to conduct a stray voltage investigation. WPS performed the test but did not discover stray voltage.

¶ 4. The problems persisted through 1994. That year, Allen installed a new milking parlor in an attempt to remedy the problem. However, milk production did not improve so Allen tried other things to increase production. He testified that he went over every area of the farm to make sure "everything was up to snuff' and to make sure he was not "doing anything wrong."

¶ 5. By 1997, there was still no improvement. In 1997, Allen contacted an electrician, Larry Neubauer, to investigate for stray voltage. Neubauer concluded there was stray voltage and that it was caused by WPS. However, Allen was not convinced so Neubauer suggested having WPS come out and test again. As in 1988, WPS again said there was no stray voltage problem. It offered to install a Dairyland Isolator at the farm, which would separate WPS's distribution system from the farm's electrical system. The isolator was installed in July 1997. Milk production improved for a few days but then the problems returned. Allen called WPS again and showed them Neubauer's readings. WPS stated the problems were due to issues on the farm, not stray voltage.

¶ 6. Neubauer suggested a different isolation system similar to the Dairyland Isolator. He installed it in December 1997. The herd's health and behavior improved and milk production increased in 1998. However, in 1999, the herd's behavior worsened again so Allen called Neubauer. Neubauer installed a copper ground ring around the farm to prevent current from coming onto the farm. Nevertheless, milk production continued to decrease. Allen installed a ditch bypass wire to attempt to reduce the current. He also installed a surface ring of wire around the farm. Still there was no improvement.

¶ 7. On November 9, 2000, Allen filed suit against WPS. He alleged WPS negligently permitted stray voltage to harm his cows and that its distribution system was a nuisance. A jury trial took place from May 19 through June 12, 2003. The jury determined that stray voltage from WPS's distribution system caused harm to Allen's dairy farm, that WPS was negligent in its distribution of electricity, and that WPS's negligence caused the harm. It awarded Allen $750,000 in economic damages and $1,000,000 for annoyance, inconvenience and loss of use and enjoyment of his property. The court denied postconviction motions filed by both WPS and Allen and granted judgment on the jury's verdict.

DISCUSSION

WPS's Appeal

I. Statute of Limitations

¶ 8. Wisconsin Stat. § 893.52 provides a six-year limitations period for negligence and nuisance claims. The accrual of a stray voltage claim is governed by the discovery rule. Kolpin v. Pioneer Power & Light Co., 162 Wis. 2d 1, 24-27, 469 N.W.2d 595 (1991). Under that rule, a plaintiffs claim accrues when the plaintiff objectively knows, or with reasonable exercise of care should have known, the cause of the injury and the defendant's part in that cause. Id. Furthermore, "[a] plaintiff can rely on the discovery rule only if he or she has exercised reasonable diligence." Jacobs v. Nor-Lake, Inc., 217 Wis. 2d 625, 634, 579 N.W.2d 254 (Ct. App. 1998). Reasonable diligence means "such diligence as the great majority of persons would use in the same or similar circumstances" to discover the cause of the injury. Spitler v. Dean, 148 Wis. 2d 630, 638, 436 N.W.2d 308 (1989). "The construction of a statute of limitations is a question of law which we review without deference to the circuit court's decision." Kolpin, 162 Wis. 2d at 18.

¶ 9. WPS argues that Allen began experiencing the problems more than six years before he filed suit, thought stray voltage was the cause, but failed to take steps to discover that stray voltage was in fact the cause. WPS argues that Allen acted unreasonably by failing to investigate the cause of his herd's problems. WPS contends Allen did nothing to discover the problem before 1994, even though the herd's behavior and production were substandard during that time. WPS notes that Neubauer easily diagnosed a stray voltage problem in 1997. WPS argues that if Allen had acted with reasonable diligence, he would have discovered the problem much earlier than he did. Therefore, WPS contends, Allen's claim is barred because the statute of limitations had expired before he brought this action.

¶ 10. Allen responds that this case is similar to Kolpin. There, Kolpin experienced problems with his herd's behavior and milk production beginning in 1977. Id. at 11. By 1980, Kolpin learned of the concept of stray voltage and had a hunch that it caused the herd's problems. However, he was not yet aware that the defendant, Pioneer, was the cause of the stray voltage. In 1983, Kolpin installed an electric grounding device, after which milk production improved. It was then that Kolpin concluded Pioneer caused his herd's problems. Id. at 26.

¶ 11. Kolpin filed suit against Pioneer in 1987. Id. at 10. Pioneer argued Kolpin had discovered his claim more than six years before commencing his action. Id. at 14. The supreme court concluded that Kolpin did not discover, or with the exercise of reasonable care should not have discovered, that Pioneer's electrical system was the cause of the herd's problems until he installed the electric grounding device in 1983. Therefore, the court concluded, his action was commenced within the six-year statute of limitations. Id. at 27.

¶ 12. Based on Kolpin, Allen argues that he did not discover, or with the exercise of reasonable care should not have discovered, that WPS was the cause of his problems until Neubauer installed the isolation system and milk production began to improve. We agree. We conclude that, based on Kolpin, Allen did not know nor could he have known through reasonable diligence that WPS was the cause of his herd's problems until the isolation unit was installed and production improved. The record shows that Allen went through a reasonable process to attempt to determine the source of the problem.

¶ 13. In 1988, Allen asked WPS to come to his farm to test for stray voltage. Having been told by WPS that it could not find stray voltage, Allen attempted to look for another source of his herd's problem. He started by looking into the herd's nutrition and worked with nutritionists between 1984 and 2003. None were able to make changes to increase milk production. In 1991 he bought a new mixer feed wagon, but there was no improvement. In 1994, his milking equipment dealer suggested installing a new milking parlor, but again milk production did not increase.

¶ 14. In 1997, the milking equipment dealer suggested having an electrician test for stray voltage. This is when Neubauer determined Allen had a problem with stray voltage. Allen called WPS and asked them to perform another test, but again WPS said he had no problem. Allen then proceeded to purchase the Dairy-land Isolator at WPS's suggestion. The herd's behavior and production improved, but only for a few days. WPS went to the farm again and told Allen that his problems were "on-farm problems," thereby again denying there was any stray voltage on the farm. Allen then had Neubauer install a new isolator in January 1998 and finally the herd's behavior and production improved. It was after this new isolator was installed that Allen could objectively know that WPS's electrical system was a cause of the damage to his dairy operation.

¶ 15. Although WPS argues that Allen should have discovered the problem earlier, WPS went to the farm three times and told Allen there was no problem. Allen cannot be faulted for accepting the results of WPS's testing and continuing to search for other possible sources of the problem. Furthermore, ak we discuss later, in its response to Allen's cross-appeal argument that he is entitled to treble damages, WPS argues that as a matter of scientific fact there was no stray voltage problem. We are unpersuaded by WPS's contention that Allen failed to use reasonable diligence to discover a problem WPS could not find and contends never existed in the first place.

¶ 16. WPS further argues, however, that Kolpin does not apply because the supreme court was not asked to address the issue of reasonable diligence to investigate stray voltage. WPS argues that issue was not in question in Kolpin as it is here. WPS maintains the jury should have been given the opportunity to determine whether Allen used reasonable diligence. However, we conclude that the principles underlying Kolpin address the issue and, in fact, the Kolpin court did touch upon reasonable diligence, even if it did not use that exact phrase. The supreme court noted:

Because of the difficulties in pinpointing the exact source of stray voltage, it is difficult for a plaintiff to determine the relationship between the stray voltage and its source. The source could be the plaintiffs own electrical wiring, a defect in the milking parlor, or an improperly grounded line leading to the barn. But in this case, once the Kolpins found the solution to their problem, they were able to trace it to the cause of their problem — Pioneer's distribution system. The "discovery" was more of a process of elimination of possible causes rather than a process of determination of the cause.

Kolpin, 162 Wis. 2d at 26-27. In this way, the supreme court noted that Kolpin went through a reasonable process of investigating the cause of his problems by eliminating other possible causes. Similarly, Allen went through a reasonable process of eliminating other possible causes until Neuberger installed the isolator and objectively discovered the relationship between the stray voltage and WPS. We conclude that, as a matter of law, on the undisputed facts of this case as described above, the record establishes that Allen exercised reasonable diligence to investigate the source of his herd's problems.

¶ 17. Furthermore, the jury instruction and verdict question regarding Allen's own negligence effectively addressed this issue even were we not to conclude that Allen used reasonable diligence as a matter of law. The jury was instructed:

The failure to exercise ordinary care to discover an unsafe electrical condition on the farm, even if it does not involve his own equipment, can also be negligence. However, if the defective electrical condition on the farmer's equipment or facilities is such that it was not known or would not have been [discovered by the exercise of ordinary care, the farmer is not negligent in permitting it to exist in such condition.

The jury was then asked to answer the verdict question, "Was Russell Allen, his agents or employees negligent in the use of electricity on his farm?" The jury answered "No." In order to reach that conclusion, the jury had to determine that Allen exercised ordinary care "to discover an unsafe electrical condition on the farm," such as stray voltage. Thus, the question WPS wanted the jury to consider was, in effect, answered, and the record supports the answer.

II. Award for Nuisance Damage

¶ 18. WPS argues that Allen is not entitled to an award for "annoyance, inconvenience and loss of use and enjoyment of his property" because it is an award for uncompensable mental distress. We conclude that WPS has not preserved this argument for appeal. WPS argues that the jury instruction did not properly define the requisites for nuisance damages. However, WPS has not shown that it objected to the jury instruction or that it offered an alternative jury instruction that defined nuisance damages as it does on appeal. See Wis. Stat. § 805.13(3).

¶ 19. WPS also argues that Allen's attorney, in his closing argument, was actually arguing for mental distress damages rather than nuisance damages. WPS maintains that Allen testified he was entitled to nuisance damages merely because his enjoyment of working on the farm was lessened by the problems his herd suffered. WPS argues this is mental distress, not nuisance, which it contends requires "discomfort due to a sensory irritation." However, WPS does not show that it objected to Allen's attorney's argument.

¶ 20. Because WPS did not object to the jury instruction or Allen's arguments during trial, the trial court was never given an opportunity to consider the arguments and make a ruling that this court could review. See State v. Rogers, 196 Wis. 2d 817, 829 n.5, 539 N.W.2d 897 (Ct App. 1995). "[T]he appellant [must] articulate each of its theories to the trial court to preserve its right to appeal." Id. at 829. This rule is "not merely-a technicality or a rule of convenience; it is an essential principle of the orderly administration of justice." State v. Huebner, 2000 WI 59, ¶ 11, 235 Wis. 2d 486, 611 N.W.2d 727. "The rule promotes both efficiency and fairness, and 'go[es] to the heart of the common law tradition and the adversary system.'" Id. (quoting State v. Caban, 210 Wis. 2d 597, 604-05, 563 N.W.2d 501 (1997)). The rule serves several important objectives:

Raising issues at the trial court level allows the trial court to correct or avoid the alleged error in the first place, eliminating the need for appeal. It also gives both parties and the trial judge notice of the issue and a fair opportunity to address the objection. Furthermore, the waiver rule encourages attorneys to diligently prepare for and conduct trials. Finally, the rule prevents attorneys from "sandbagging" errors, or failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal.

Huebner, 235 Wis. 2d 486, ¶ 12 (citations omitted). This "rule is essential to the efficient and fair conduct of our adversary system of justice." Id. Because WPS did not raise the issue at trial, we do not address it.

III. Remittitur of Nuisance Damage Award

¶ 21. WPS argues that if Allen is entitled to nuisance damages, the one million dollar award should be reduced. "If there is any credible evidence which under any reasonable view supports the jury finding as to the amount of damages, especially where the verdict has the approval of the trial court, this court will not disturb the finding unless the award shocks the judicial conscience." Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 446, 405 N.W.2d 354 (Ct. App. 1987).

¶ 22. The jury awarded Allen $750,000 in economic damages and one million dollars in nuisance damages. WPS contends that the nuisance award is excessive and greatly exceeds damage awards in other stray voltage cases. For example, in Vogel v. Grant-Lafayette Elec. Co-op, 201 Wis. 2d 416, 432, 548 N.W.2d 829 (1996), the jury awarded the plaintiff $240,000 in economic damages and $60,000 for inconvenience and annoyance. Thus, the award for inconvenience and annoyance was 25% of the award for economic damages.

¶ 23. We conclude that the nuisance award here was not excessive in light of Allen's experience ultimately leading to finding the source of his herd's problems. He began experiencing problems in 1976, and was not able to conclude that WPS was the source of the problem until the second isolator was installed in 1997. Until the time of trial, he was still experiencing problems. He called WPS to his farm on multiple occasions to test for stray voltage, and each time WPS told him he did not have a problem or that the problem was on his farm and not a result of WPS's electrical system. Consequently, Allen continued to search for sources of the problem. For more than two decades Allen's cows' behavior was difficult to control and the farm suffered from decreased milk production. Allen testified that by 1997 he was "heading for bankruptcy" as a result of the problems he was experiencing. Even though the jury's award here exceeded awards in other reported stray voltage cases, we conclude the award is justified under the circumstances of this case.

Allen's Cross-Appeal

I. Treble Damages

¶ 24. Wisconsin Stat. § 196.03(1), states, "Subject to s. 196.63, a public utility shall furnish reasonably adequate service and facilities." Wisconsin Stat. § 196.64(1) provides for an award of treble damages when a public utility willfully, wantonly, or recklessly violates its statutory duties. The plaintiff must prove entitlement to treble damages by clear and convincing evidence. Wis. Stat. § 196.64(2).

¶ 25. WPS's conduct was wanton, willful and in reckless disregard of Allen's rights if it demonstrated an indifference to the consequences of its actions, even though it may not have intended insult or injury. See Sharp v. Case Corp., 227 Wis. 2d 1, 21, 595 N.W.2d 380 (1999). The trial court dismissed Allen's request for treble damages because it determined there was no evidence that WPS acted in a manner that was willful, wanton or reckless. We agree and conclude a jury could not have found by clear and convincing evidence that WPS acted with indifference to the consequences of its actions.

¶ 26. Allen gives several examples of what he claims is evidence of WPS's willful, wanton or reckless disregard of his rights. Without addressing each specifically, taken cumulatively they do not support a claim for treble damages. WPS attempted to find the stray voltage on Allen's farm, but concluded there was no problem. WPS conducted stray voltage testing on Allen's farm on several occasions, using a variety of tests. In none of these visits did WPS detect current exceeding one milliampere. Despite Allen's arguments that WPS falsified the results of the testing, the record does not support those allegations.

¶ 27. WPS points to studies by the United States Department of Agriculture and by state agencies such as the Public Service Commission of Wisconsin, which regulates WPS, that discuss an electric current's effect on dairy cattle. These sources agree that current below four milliamperes has no adverse affect on dairy cows. The USDA has determined that cows do not perceive electricity below one milliampere, and voltage at that level does not affect milk production. Both WPS's and Allen's experts found current measuring less than one milliampere on Allen's farm. WPS cannot be faulted for following plausible science when it concluded there was no problem. Consequently, Allen has not shown that WPS acted willfully, wantonly or recklessly. Thus the trial court did not err in denying Allen's request for treble damages.

II. Injunction

¶ 28. After the jury's verdict, Allen filed a motion for injunctive relief, asking the trial court to enjoin WPS from allowing stray electrical currents onto his farm. The court denied the motion stating,

[Allen] has made an election of remedies here and has proceeded to obtain a jury verdict setting forth damages, if you will, for the nuisance that [Allen] perceives exists. And for this Court to consider an injunction subsequent to the awarding of damages for the nuisance seems not only inconsistent with Wisconsin law, but inappropriate.
Now, if [Allen] were to say, well, we don't want the money, we want the injunction, then I think you have a different situation. But that's not what I'm hearing. That's not what I heard. For some reason I believe [Allen] thinks that they can have both, and I don't think that's the case.

¶ 29. Whether to grant an injunction is vested in the trial court's discretion. Bubolz v. Dane County, 159 Wis. 2d 284, 296, 464 N.W.2d 67 (Ct. App. 1990). "A discretionary determination will be sustained where it is demonstrably made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law." State v. Seigel, 163 Wis. 2d 871, 889, 472 N.W.2d 584 (Ct. App. 1991).

¶ 30. When seeking an injunction, a plaintiff must show a sufficient likelihood that the defendant's future conduct will cause the plaintiff irreparable harm. Pure Milk Prods. Co-op v. National Farmers Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 (1979). Irreparable harm is that which is not adequately compensable in damages. Id. Also, the plaintiff must lack an adequate remedy at law. Sunny side Feed Co. v. City of Portage, 222 Wis. 2d 461, 472, 588 N.W.2d 278 (Ct. App. 1998).

¶ 31. Allen argues he is entitled to both money damages and injunctive relief for continuing nuisance because his farm would continue to be adversely affected by the stray voltage. He argues the jury's award for economic damages did not take into account the harm his farm would continue to suffer. However, WPS contends that a portion of the damage award Allen received did take future damages into account. Thus, it argues Allen is not also entitled to an injunction because Allen had an adequate remedy at law. WPS points to Allen's damage expert's testimony that the damages for capital loss included a calculation for the value of the herd. The expert testified that the value of Allen's herd was reduced because it was anticipated that the herd would produce less milk in the future. Thus, the capital loss that Allen asked to be compensated for included the value of milk that the cows would not produce in the future.

¶ 32. The record is unclear whether the trial court based its denial of the injunction on a consideration of a future damages component. Instead, the court simply determined that Allen could not have both money damages and an injunction. However, if the award did not take future damages into account, Allen may be entitled to an injunction. We therefore reverse the court's denial of an injunction and remand so that the trial court may determine whether Allen's damage award contains an element of future damages. Alternatively, the trial court should consider whether this issue is now moot because Allen is no longer engaged in dairy farming.

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

       Allen's additional claims of trespass and strict liability were dismissed before trial.

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


text:
    Ashley E. Mews, Diane E. Mews, as Guardian in fact for Jesse D. Mews and Diane E. Mews, Plaintiffs-Respondents, v. Derek J. Beaster and American Family Mutual Insurance Company, Defendants-Appellants, Open Hearth Homes and State Farm Insurance Company, Defendants.
    Court of Appeals

      No. 04-1147.

      Submitted on briefs January 7, 2005.

    Decided February 16, 2005.

    2005 WI App 53
    (Also reported in 694 N.W.2d 476.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Wayne M. Yankala and Hillary M. Kowalski of Mingo & Yankala, S.C., of Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Thomas C. Simon of Gatzke & Ruppelt, S.C., of New Berlin.

      Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 7-28-2005.

   BROWN, J.

¶ 1. The issue in this case arises from pretrial settlement offers made by the defendants to each of three plaintiffs. Wisconsin Stat. § 807.01(1) (2003-04) allows a defendant to serve a written offer of judgment on a plaintiff, which offer the plaintiff must accept within ten days. If the plaintiff does not accept the offer and fails to recover a more favorable judgment, the defendant shall recover costs. Id. However, the offer is not valid unless the offeree is able to fully and fairly evaluate the offer from his or her own perspective. Wilber v. Fuchs, 158 Wis. 2d 158, 164-65, 461 N.W.2d 803 (Ct. App. 1990). The question here is whether the pendency of a motion to dismiss part of a plaintiffs claim absolves the plaintiff from having to act on the statutory offer. The plaintiffs in this case argue that the offers to them could not have been "fully and fairly evaluated" because of such a pending motion. We disagree. If an offer is plain on its face and offers to settle the entire claim, it is an offer to do so despite the vagaries of suit. Whether the value of the claim may later change due to a court's pretrial ruling is part of the risk-benefit analysis that all parties are capable of deciding. The offers are enforceable, and we reverse the trial court's ruling to the contrary.

¶ 2. The genesis of this lawsuit is an auto accident involving vehicles driven by Ashley E. Mews and Derek J. Beaster. Beaster rear ended Mews' automobile, causing injuries to Ashley and her brother, Jesse D. Mews. They filed suit along with their mother, who" asserted a claim for loss of society and companionship, and demanded payment for medical expenses. The complaint alleged that Beaster was negligent and also that, because he had consumed alcoholic beverages prior to the accident, there should be punitive damages. American Family Mutual Insurance Company was also named as a defendant since it was Beaster's insurer at the time of the accident. We will refer to the defendants collectively as "Beaster."

¶ 3. Beaster moved to dismiss the punitive damages claim or, in the alternative, for bifurcation of the compensatory and punitive damages claims. The trial court heard and denied the motion on August 4, 2003, subsequently entering an order consistent with that ruling. On October 3, Beaster moved for reconsideration of the denial of the motion to strike the punitive damages claim based, in part, on an unrelated opinion that this court decided subsequent to the denial of the original motion. The hearing was set for October 20.

¶ 4. On October 6, Beaster served statutory offers of judgment separately on each of the three plaintiffs. These offers were not accepted within the statutory time period, which was the close of the business day on October 20. On that same day, the trial court again denied the motion to strike the punitive damages claim but did allow bifurcation of the compensatory and punitive damages claims.

¶ 5. The case proceeded to jury trial, and the jury found compensatory damages but not punitive damages. The offers of judgment directed to the three plaintiffs exceeded the amount awarded by the jury. After trial, Beaster unsuccessfully moved for costs pursuant to Wis. Stat. § 807.01(1). The trial court agreed with the plaintiffs that they could not have fully and fairly evaluated the offers until they knew whether the punitive damages claim was going to trial. The trial court opined that the plaintiffs' counsel "did not have all of the information available to him in a time period that would have otherwise given him the ability to properly evaluate ...This appeal followed.

¶ 6. Whenever our appellate courts have addressed whether an offer to settle could be "fully and fairly evaluated," the discussion of that issue has been limited to the context of infirmities within the four corners of the offer itself. We have scrutinized whether offers of judgment are sufficiently specific to give offer-ees the ability to evaluate them and make reasoned decisions about whether to accept them. Examples abound. Wilber concerned whether a plaintiffs offer of settlement of all claims directed individually to multiple defendants was a valid offer. See Wilber, 158 Wis. 2d at 160. We deemed the offer invalid because the defendants could not ascertain their individual exposure from one aggregate settlement figure. See id. at 164. In Testa v. Farmers Insurance Exchange, 164 Wis. 2d 296, 299, 474 N.W.2d 776 (Ct. App. 1991), we held valid a single settlement offer to multiple defendants. There the defendants were able to ascertain their individual liability from the offer. Id. Stan's Lumber, Inc. v. Fleming, 196 Wis. 2d 554, 561, 576, 538 N.W.2d 849 (Ct. App. 1995), involved ambiguity in the offer as to whether it included sums previously awarded by reason of a partial judgment. Pachowitz v. LeDoux, 2003 WI App 120, ¶¶ 51-52, 265 Wis. 2d 631, 666 N.W.2d 88, review denied, 2003 WI 140, 266 Wis. 2d 63, 671 N.W.2d 849 (No. 02-2100), rejected the enforceability of an offer of judgment because it did not include attorney fees, which the court saw as being part of the judgment in a case involving a fee-shifting statute.

¶ 7. In DeWitt Ross & Stevens, S.C. v. Galaxy Gaming and Racing Ltd. Partnership, 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839, while the supreme court did not have before it an offer which was arguably lacking in specificity, it did involve an offer which appeared to state a condition that was outside the purview of Wis. Stat. § 807.01(1). The case involved an offer that came with a condition that there had to be payment within fifteen days of acceptance of the offer. See DeWitt, 273 Wis. 2d 577, ¶ 13. Yet, DeWitt, like all the others cited, concerned a question of infirmity or ambiguity within the four corners of the offer. All of the above cases are therefore factually distinguishable from the case here, where the claim is that an event extraneous to the text of the document prevented the plaintiffs from being able to properly evaluate the offer.

¶ 8. Nonetheless, the plaintiffs cite Stan's Lumber as being helpful to their cause. This is how they see Stan's Lumber:

In Stan's Lumber an offer of settlement was presented to Fleming, who did not respond according to [Wis. Stat.] § 807.01(3). Fleming claimed, after trial, that he could not fairly evaluate the offer at the time because it was ambiguous due to a partial judgment that had been taken in the matter prior to the offer of settlement being served on him. In analyzing the offer of settlement, the court in Stan's Lumber held that "[w]hile these words are clear enough on their face, they become ambiguous in light of the partial judgment already entered against Fleming on the admitted claim." It is clear that the court in Stan's Lumber looked beyond the mere face of the offer and considered other circumstances in relation to Fleming's ability to fully and fairly evaluate the offer. (Alteration in original; citations omitted.)

¶ 9. The plaintiffs are wrong in their interpretation of Stan's Lumber. To explain, we begin by quoting a passage from Judge Richard Posner in United States v. National Steel Corp., 75 F.3d 1146, 1149 (7th Cir. 1996):

There is a helpful analogy to the distinction in contract law between "intrinsic" and "extrinsic" ambiguity. The first is present when from just reading the contract it is apparent that the contract is unclear. The second is present when although the contract is clear at the semantic or literal level, anyone who knew something about the subject matter would realize that the contract probably did not mean what it said. If neither type of ambiguity is present, the court does not take evidence beyond the contract itself. (Citation omitted.)

¶ 10. We use a similar analogy to explain Stan's Lumber. While we did not use the term "intrinsic" in our opinion, we wrote that, facially, the offer was clear. See Stan's Lumber, 196 Wis. 2d at 576. In other words, there was no "intrinsic" ambiguity. But even though Stan's offer was clear from a semantic or literal standpoint, the person to whom the offer was directed, Gary Fleming, was a party who "knew something about the subject matter" and would be unsure about whether the offer included or excluded the amount awarded by the earlier partial judgment. An ambiguity was thus presented extrinsically, which compelled us to consider the earlier partial judgment.

¶ 11. Here, by contrast, from the plain language of the offer, the plaintiffs knew that Beaster was offering to settle the "entire" claim for a certain amount. Whether punitive damages were eventually going to be part of the case or not, the offer was clear: Beaster would pay "X" dollars to resolve the whole claim. This situation is far different from Fleming's dilemma where he did not know the value of "X" from the language of the offer. There was no instrinsic or extrinsic ambiguity underlying this offer. There was, therefore, no compelling reason for the parties or the court to consider the impact of the pending motion to reconsider in determining the clarity or legality of the offer.

¶ 12. The law in Wisconsin is such that we will condemn only those offers of settlement that unreasonably force settlements. Wilber, 158 Wis. 2d at 164. Here, given the fact that both parties had the same information, were equally unsure about what might occur with regard to the motion for reconsideration and were equally capable of factoring this uncertainty into their risk-benefit analyses, there was nothing unreasonable about the offer or the timing of it. Cf. Mackie v. Chizmar, 965 P.2d 1202, 1204 n.2, 1206 (Alaska 1998) (costs awarded based on a rule similar to Wis. Stat. § 807.01(1) where parties were equally uncertain about outcome of appeal and equally capable of factoring certain contingencies into their risk-benefit analyses).

¶ 13. Were we to rule in the plaintiffs' favor, we would be doing a disservice to the offer-to-settle statutes that were designed to "force" settlements so long as the force is reasonable. Because any pending motions would likely bear on the decision whether to accept or reject an offer, the entire process would be rendered meaningless in innumerable cases. Motions to strike testimony, motions in limine, motions to dismiss and motions for summary judgment, to name a few, all could be used to thwart a clear, valid offer to settle a case. We can envision a scenario where any attorney on the receiving end of an offer of judgment who wanted to avoid the consequences of the offer could file a motion within the ten days that would place the outcome of the action in some state of uncertainty, thereby placing the attorney and the client in a position where they could not fully and fairly evaluate the offer. We cannot countenance such a result.

¶ 14. The circuit court’s order declined to enforce the offer of settlement. We reverse that order and remand with directions that it determine the amount owed to Beaster in accordance with Wis. Stat. § 807.01(1).

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

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