author: LUNDSTEN, J. DYKMAN, J.

text:
    Troy M. Hellenbrand and Hellenbrand & Hellenbrand, S.C., Plaintiffs-Appellants, v. Franklin C. Hilliard, American Family Mutual Insurance Co., Laura L. Fenton and Allstate Insurance Co., Defendants-Respondents, Dean Health Plan Inc. and Wisconsin Mutual Insurance Co., Subrogated Parties-Defendants.
    Court of Appeals

      No. 03-0007.

      Submitted on briefs September 8, 2003.

    Decided July 8, 2004.

    2004 WI App 151
    (Also reported in 687 N.W.2d 37.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of J. Michael Riley and Jason J. Knutson of Atterbury, Riley & Kammer, S.C., Madison.
    On behalf of the defendants-respondents American Family Mutual Insurance Company and Franklin C. Hilliard, the cause was submitted on the brief of Matthew E. Valley and Michael R Crooks of Peterson, Johnson & Murray, S.C., Madison.
    Before Deininger, PJ., Dykman and Lundsten, JJ.

       Petition to review dismissed 9-1-04.

   LUNDSTEN, J.

¶ 1. Hellenbrand & Hellenbrand, S.C., appeals an order of the circuit court granting summary judgment in favor of defendants, including American Family Mutual Insurance Company. Although Hellenbrand & Hellenbrand is a corporation, for ease of discussion we will refer to it as if it were the person Troy Hellenbrand, also a named plaintiff in this case. Similarly, although multiple insurance companies are involved, including Hellenbrand's own insurance company, we refer mostly to the tortfeasor's insurance company, American Family.

¶ 2. This case involves the availability of certain types of damages. Hellenbrand's minivan was damaged in an accident. American Family assumed responsibility for compensating Hellenbrand. Hellenbrand sought an award for loss of value representing the difference between the fair market value of his minivan immediately before the accident and its value after it was repaired. The circuit court concluded that case law precluded such an award. Hellenbrand also sought an award for the loss of use of his damaged minivan for the time period before Hellenbrand's repaired minivan was returned to him and during which Hellenbrand operated a new minivan he had purchased. The circuit court concluded that when Hellenbrand purchased his new minivan, he acquired a "permanent replacement" vehicle which ended his loss-of-use damages. Hellenbrand asserts that these legal rulings of the circuit court are erroneous and, consequently, that the court wrongly granted summary judgment. We agree. We reverse summary judgment and remand for further proceedings.

Background

¶ 3. The following facts are undisputed for purposes of summary judgment analysis. Hellenbrand purchased a 2001 Honda Odyssey LX minivan for $24,508. About five months later, on April 19, 2001, Hellenbrand's minivan was seriously damaged in an accident caused by an American Family insured. American Family accepted responsibility for repairing or replacing Hellenbrand's van.

¶ 4. On April 26, 2001, Hellenbrand rented a vehicle from a rented company. About one month later, on May 21, 2001, Hellenbrand purchased and took possession of a new 2001 Honda Odyssey LX minivan. There are conflicting assertions as to whether, prior to this purchase, Hellenbrand had been informed that his minivan would be repaired. It is undisputed, however, that Hellenbrand had not been told that his minivan would be deemed a total loss, such that he would be compensated for the value of this minivan prior to the accident. Two days after Hellenbrand purchased his new minivan, he returned the rental vehicle.

¶ 5. On August 3, 2001, Hellenbrand picked up his repaired minivan. Hellenbrand put his repaired minivan up for sale and eventually sold it for $19,000.

¶ 6. In the course of discovery, Hellenbrand produced evidence indicating that his minivan had a fair market value of approximately $23,000 immediately before the accident and $19,000 after it was repaired. The details of this evidence are not important for purposes of this appeal.

Discussion

¶ 7. The circuit court granted summary judgment in favor of American Family. We review summary judgment de novo, applying the same standard as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). A party is entitled to summary judgment if there is no genuine issue as to any material fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2001-02).

Whether Summary Judgment Should be Granted in Favor of American Family Based on Hellenbrand's Failure to Comply with a Procedure Ordered by the Circuit Court

¶ 8. American Family argues that summary judgment was properly granted because Hellenbrand failed to comply with a circuit court order directing Hellen-brand to respond in a particular format to proposed undisputed facts contained in American Family's summary judgment motion. American Family points out that the circuit court's order setting forth the summary judgment procedures the parties must employ states: "Unless the responding party properly places a factual proposition of the moving party in dispute, the court will conclude that there is no genuine issue of fact as to the [undisputed fact] initially proposed by the moving party." American Family contends that Hellenbrand's failure to respond to American Family's proposed undisputed facts in the manner set forth in the circuit court's order constituted both a waiver of Hellenbrand's right to contest those facts and an independent basis for summary judgment in favor of American Family. We agree that Hellenbrand waived his right to contest American Family's proposed undisputed facts, but disagree that this failure constitutes an independent basis for summary judgment.

¶ 9. The circuit court's order specified a procedure for exchanging summary judgment arguments. The order reasonably informs a responding party that, if it disagrees with a proposed undisputed fact offered by the moving party, the responding party must specify the fact by paragraph number and explain why the fact is disputed. The circuit court's order provides that if a responding party does not contest a proposed undisputed fact, that fact will be deemed undisputed for purposes of deciding the summary judgment motion. Because we agree with the circuit court and American Family that Hellenbrand failed to respond to proposed undisputed facts in the manner specified by the circuit court, American Family's proposed facts were properly deemed undisputed by the circuit court, and we likewise deem them undisputed.

¶ 10. However, Hellenbrand's failure to contest proposed facts in the manner specified by the circuit court does not, by itself, form a basis for granting summary judgment against Hellenbrand. Moreover, as we read the circuit court's order, nothing prevented Hellenbrand from asserting additional facts, even if his response to facts proposed by American Family did not comply with the court's order. Thus, the question remains whether American Family is entitled to summary judgment in light of its proposed undisputed facts and any additional undisputed facts. On this topic, American Family does not suggest that any argument made by Hellenbrand is at odds with American Family's proposed undisputed facts or other undisputed facts. Thus, American Family has not presented any reason why Hellenbrand's failure to comply with the circuit court's procedure, by itself, warrants summary judgment against Hellenbrand.

Loss-of-Value-After-Repair Damages

¶ 11. Hellenbrand's minivan was repaired at a cost of about $11,000 and returned to him. This repair cost is not in dispute. Hellenbrand argues, however, that the circuit court erred when it granted summary judgment against him dismissing his loss-of-value-after-repair claim. Hellenbrand asserts that the repairs to his minivan did not restore the van to its pre-accident value and that he is entitled to damages for the reduction in value of his repaired van. Hellenbrand points to deposition testimony indicating that this difference is approximately $4,000. He asserts that remand is appropriate because there is a material factual dispute regarding this difference in value.

¶ 12. The circuit court rejected Hellenbrand's loss-of-value-after-repair argument. By way of explanation, the court adopted conclusions of law proposed by American Family:

In Wisconsin when an automobile is damaged, but not destroyed, the measure of damages is the difference between the automobile's market value before injury and its value immediately after injury.
If the changed market value and the cost of repairs are both determinable, then the lower of the two figures is the coverable amount of damages.

(Citations omitted.) Because neither party offered evidence showing the difference in market value immediately before and immediately after the accident, it appears the circuit court concluded that the only admissible evidence of loss-of-value damages was the cost of repairs, namely, $11,000.

¶ 13. Hellenbrand's basic argument is simple. He argues that the purpose of damages is to make him whole and that he has not been made whole because the value of his minivan before the accident was approximately $23,000 and the value of his minivan after it was repaired and returned to him was $19,000. American Family does not discuss whether Hellenbrand was made whole. Instead, the insurance company argues that "well established" case law in Wisconsin limits Hellenbrand's damages to the cost of repairs made to his van.

¶ 14. American Family primarily relies on two cases and a pattern jury instruction: Nashban Barrel & Container Co. v. G.G. Parsons Trucking Co., 49 Wis. 2d 591, 182 N.W.2d 448 (1971); Krueger v. Steffen, 30 Wis. 2d 445, 141 N.W.2d 200 (1966); and Wis JI — Civil 1804. American Family argues that when personal property is damaged but repairable, fact finders must be instructed to select the lower of two measures of damages: (1) the cost or estimated cost of repairs or (2) diminution in fair market value. American Family contends the decisions in Nashban Barrel and Krueger demonstrate that this "lower of the two" rule is controlling in this case. However, neither Nashban Barrel nor Krueger addresses whether a party may be awarded damages for loss of value of a repaired item of personal property. We begin with Krueger.

¶ 15. According to American Family, in Krueger the supreme court affirmed an award because it was supported by diminution-in-value evidence and the diminution in value was less than the cost of repair. This is not an accurate summary of the Krueger decision. It is true that the award affirmed in Krueger, $525, was based on "diminution-in-value" evidence, but nowhere does the supreme court say that this is the proper amount because it was less than the cost of repair. The Krueger court does discuss evidence of the estimated cost to repair the vehicle, but only to show that the circuit court was entitled to reject a lower repair estimate offered by the defendant. Krueger, 30 Wis. 2d at 448-50. The Krueger opinion is silent as to whether an award higher than diminution in value would have been affirmed. More to the point, Krueger does not contain an all-encompassing rule that limits value damages to the lower of repair cost or diminution in value.

¶ 16. American Family's reliance on Nashban Barrel comes closer to the mark, but once again that decision does not purport to set forth a rule encompassing all damage award, possibilities when an item of property is repairable.

¶ 17. The supreme court in Nashban Barrel faulted the circuit court for failing to instruct the jury that one possible measure of damages was the cost of repair. The property damage jury instruction erroneously omitted in Nashban Barrel is, for purposes of this appeal, the same as the current version of that instruction. Accordingly, we quote the current pattern instruction:

When personal property has been damaged and can be repaired, the loss to the owner is determined by one of two measures of damage. The first measure is the "Fair Market Value" rule. This rule measures the difference between the fair market value of the property immediately before the [collision] and its fair market value immediately after the [collision], "Fair market value" is the amount property will sell for where the owner is willing but not required to sell the property to a buyer willing but not required to buy the property.
The second measure of damage is the "Cost of Repair" rule. If the property can be restored to its condition before the [collision], compensation to the owner is measured by the reasonable cost of the repairs necessary to restore the property to its prior condition. The measure under this second rule is the reasonable cost to restore the property to its former condition, not what may have been the actual cost.
If the evidence allows you to apply both of these rules, and if in applying them you arrive at two different figures, your answer to question_should be the lower of the two figures.

Wis JI — Civil 1804. The loss-of-value issue in Nashban Barrel was narrow. The defendant complained, and the supreme court agreed, that the failure to give the above instruction had the effect of forcing the jury to calculate diminution in fair market value and precluding the jury from awarding a lower cost-of-repair amount. Nashban Barrel, 49 Wis. 2d at 603-06. The omission of the instruction was error because there was trial evidence supporting findings that the damaged property had "no readily ascertainable market" and that the property could be repaired at a cost lower than the market loss value asserted by the plaintiff. Id. at 595, 604-06. The net effect of the jury instructions given and not given was to take away a lower measure of damages that might still have served to make the plaintiff whole. Thus, the court in Nashban Barrel approved the use of the above pattern jury instruction in a particular type of case; the court did not hold that the pattern jury instruction is sufficient in all cases where an item of property is repairable. Language from the supreme court's decision in Kim v. American Family Mutual Insurance Co., 176 Wis. 2d 890, 501 N.W.2d 24 (1993), is apt here: "As a practical matter a court cannot anticipate every factual scenario that could be presented in determining how to phrase an opinion. The fact situation presented in this case was not presented or addressed in the Nashban case." Id. at 896.

¶ 18. The key to understanding why neither Nashban Barrel nor Krueger resolves the issue presented in this case is understanding that neither case presented the opportunity to address the argument made by Hellenbrand. That is, neither the plaintiff in Nashban Barrel nor the plaintiff in Krueger argued that a repaired and returned item of property had a value less than the item's value before the injury. In the absence of this argument, the supreme court apparently assumed, as will often be true, that if property is repairable, then repairing the property makes the plaintiff whole. In that situation, awarding a plaintiff the amount needed to repair the property has the effect of fully compensating the plaintiff for his or her loss.

¶ 19. Hellenbrand suggests that Hawes v. Germantown Mutual Insurance Co., 103 Wis. 2d 524, 309 N.W.2d 356 (Ct. App. 1981), provides helpful guidance. We agree. In Hawes, the basement walls of a home collapsed and the trial court awarded damages that included both the repair cost and the diminished value of the home after the repair. Id. at 530, 533-34. In affirming the trial court, we explained:

[The defendants] argue that the trial court erred when it allowed . .. both the cost of repair and diminution in value. They cite the rule of Laska v. Steinpreis, 69 Wis. 2d 307, 314, 231 N.W.2d 196, 200 (1975), that where both cost of repair and diminution in value are in evidence, the proper measure is the lesser of the two. The fallacy in [defendant's] reliance on this rule is that the diminution in value it addresses is "the difference between the reasonable market value of the property immediately before the injury... and its reasonable market value immediately after the injury," i.e., before the injury is repaired. Laska, supra, 69 Wis. 2d at 313, 231 N.W.2d at 200. No such evidence was offered in this case, so the cost of repair figure must stand. Id. at 314, 231 N.W.2d at 200.
The diminution in value which the trial court awarded in addition to cost of repair does not fall within the rule of Laska, but is in the nature of special damages. It reflects evidence that the repairs, when made, will not restore the property to its pre-collapse value. There is evidence that the basement collapse will have to be disclosed to any prospective purchasers of the home, that the new wall, built by the same masonry company who built the failed wall..., contains defects in design which may cause it to fail again, and that this latter fact may also have to be disclosed to prospective purchasers. The trial court did not err in awarding cost of repair, and its finding that even after these repairs have been made market value will be impaired is not against the great weight and clear preponderance of the evidence.

Id. at 533-34.

¶ 20. American Family does not take issue with the logic of Hawes. Rather, American Family argues that Hawes should not be applied here because (1) it involves real property, (2) it has not been followed by any other court, and (3) it conflicts with the plain language of Wis JI — Civil 1804. Each of these arguments is easily disposed of.

¶ 21. First, American Family does not explain why it matters that Hawes involved real property and this case involves personal property. We note that the drafters of the jury instruction on damages for personal property, Wis JI — Civil 1804, point to a real property case for the "lower of the two" provision. See Comment to Wis JI — Civil 1804, citing Hickman v. Wellauer, 169 Wis. 18, 28, 171 N.W. 635 (1919). In turn, Nashban Barrel, a personal property case, relies on Wis JI — Civil 1804. Nashban Barrel, 49 Wis. 2d at 603, 606. Thus, both the personal property damage jury instruction and Nashban Barrel, a personal property case, rely on a real property case for the "lower of the two" rule. Ironically, American Family tells us this case is controlled by Wis JI — Civil 1804 and Nashban Barrel.

¶ 22. We turn to American Family's assertion that no court has relied on our loss-in-value-after-repair discussion in Hawes. Assuming this is true — and it appears to be true with respect to published decisions — it is no indication that our reasoning was flawed. Indeed, American Family points to no decision reaching a different conclusion on this point.

¶ 23. Which brings us to American Family's last Hawes argument, that Hawes is in conflict with Wis JI — Civil 1804. Our response to American Family on this point is already laid out in ¶¶ 17-18 above. Suffice it to say here that we agree with Hellenbrand that Wis JI — Civil 1804 is a useful instruction, but one that does not cover all valid damages theories when an item of personal property is repairable.

¶ 24. Accordingly, we see no reason why the damages approach used in Hawes should not be applied here. Hawes sets forth a sensible rule that comports with the purpose of tort law, making "whole those who suffer damages as a result of another's negligence." Vogel v. Liberty Mut. Ins. Co., 214 Wis. 2d 443, 455, 571 N.W.2d 704 (Ct. App. 1997); see also White v. Benkowski, 37 Wis. 2d 285, 290, 155 N.W.2d 74 (1967) ("In Wisconsin compensatory damages are given to make whole the damage or injury suffered by the injured party."). Neither Nashban Barrel nor Krueger precludes the loss-of-value-after-repair damages approved of in Hawes. In fact, the full discussion in Krueger makes clear that when a vehicle is repaired, the repair cost is evidence of damages, but not the sole measure of damages. See Krueger, 30 Wis. 2d at 449-50.

¶ 25. We conclude that when a plaintiff proves that repairs to personal property have not restored the property to its pre-injury value, and the plaintiff demonstrates that he or she has been or will be harmed by such loss in value, the plaintiff is entitled to damages for the proven lost value. A couple of qualifications to this rule come to mind.

¶ 26. First, a particular area of law may contain an established exception to the general make-whole rule. "The rules for measuring damages for loss of personal property are governed by a variety of concepts that attempt to make the owner whole for the loss sustained as a result of another's negligence. Economic concepts, however, limit the make whole doctrine in order to minimize damages and avoid economic waste." Schrubbe v. Peninsula Veterinary Serv., Inc., 204 Wis. 2d 37, 42, 45, 552 N.W.2d 634 (Ct. App. 1996) (limiting the general make-whole rule by holding that damages should not be higher based on the particular plaintiffs inability to afford replacement calves).

¶ 27. Second, we do not address what should happen if repair costs plus loss-of-value-after-repair damages exceed the fair market value of an item pre-injury. Perhaps in this scenario the availability of damages exceeding pre-injury fair market value may depend on how the decision to repair the vehicle is made. Perhaps not. We do not weigh in on the topic.

¶ 28. Having concluded that the circuit court erred when it rejected Hellenbrand's loss-of-value-after-repair damages theory, we turn to the facts in this case. Helleifbrand asserts there is a material factual dispute as to whether his minivan was worth less after the repair and in what amount. American Family does not address this topic because it relies entirely on its argument that such damages are contrary to established law. Our own review of the record reveals that deposition testimony contains what appears to be admissible evidence showing that Hellenbrand's repaired van is worth about $4,000 less than before the accident. Therefore, we agree with Hellenbrand that the circuit court erred when it dismissed his loss-of-value-after-repair damages claim, and we remand for further proceedings on that topic.

Loss-of-Use Damages for the Time Period After Hellenbrand Purchased a New Minivan and Before Hellenbrand's Repaired Minivan was Returned to Him

¶ 29. The parties agree that Hellenbrand is entitled to loss-of-use damages as a result of the accident that seriously damaged his minivan. In particular, the parties agree that Hellenbrand should receive damages for the rental costs he incurred for approximately twenty-eight days after the accident. The parties disagree, however, as to whether the loss-of-use time period should include time when Hellenbrand began using his newly purchased minivan after Hellenbrand returned his rental vehicle, but before Hellenbrand's damaged minivan was repaired and returned to him.

¶ 30. The circuit court concluded that when Hel-lenbrand purchased his new minivan, he was no longer entitled to loss-of-use damages. The circuit court adopted American Family's legal argument — that is, that loss-of-use damages cease on the date a claimant obtains a permanent replacement vehicle and that Hellenbrand's new minivan was, as a matter of law, a permanent replacement vehicle.

¶ 31. Hellenbrand argues that when, as here, a responsible party opts to repair and return a vehicle, the time period for purposes of measuring loss-of-use damages is normally the time the vehicle is out of service. In Hellenbrand's view, this is the appropriate time period even if the owner of the damaged vehicle decides to deal with loss of use by purchasing a vehicle. Hellenbrand contends there are material disputed facts regarding whether he incurred compensable damages during this time period and that remand is necessary. We. agree with Hellenbrand that when a vehicle is repaired and returned to its owner, the relevant loss-of-use time period does not end simply because the owner decides to cope with loss of use by purchasing a vehicle. However, for reasons discussed below, we do not address whether there is a material factual dispute as to whether Hellenbrand incurred compensable damages during this time period, but instead remand on this topic.

¶ 32. We begin by examining American Family's legal argument. Relying on Nashban Barrel, 49 Wis. 2d 591, American Family argues that a claimant is entitled to receive damages for the loss of vehicle use for a time period reasonably required for replacement and that the proper measure of damages for loss of use is the cost of hiring or renting another vehicle during "either the period of replacement or repair." Then, relying on Kim, 176 Wis. 2d 890, American Family asserts that the purpose of the law on this topic is to limit damages to the period of time in which the claimant is burdened by the loss of his vehicle. According to American Family, Hellenbrand's burden ended when he no longer had to pay for a rental vehicle, that is, when he purchased a new minivan. American Family contends that Hellenbrand's new minivan was a "permanent replacement" vehicle which ended his loss-of-use time period because once Hellenbrand acquired his new minivan, he "suffered none of the compensable inconveniences mentioned in the Kim case."

¶ 33. American Family's argument confuses the common usage of "permanent replacement" with the more particular meaning that term has in loss-of-use-damages cases. No doubt it can be said that Hellen-brand permanently replaced his damaged minivan with a nearly identical new minivan. But the term "permanent replacement vehicle" has a particular meaning in the context of loss-of-use law. This term is used when a claimant is notified that a damaged vehicle will not be repaired and there is agreement that the claimant may acquire a permanent replacement vehicle so as to put an end to his or her loss-of-use damages. In such cases, the claimant is made whole both by receiving loss-of-use damages and by receiving money tendered toward the purchase of the replacement vehicle. Here, American Family did not offer to provide money for a replacement vehicle. Instead, it only offered to pay for repairs to Hellenbrand's damaged minivan. Accordingly, American Family, as the responsible party, was liable for loss-of-use damages until the time the repaired minivan was returned to Hellenbrand.

¶ 34. Further, neither Nashban Barrel nor Kim contains a blanket rule providing that the purchase of a new comparable vehicle constitutes a "permanent replacement" vehicle for purposes of loss-of-use damages. Rather, these cases teach that the owner of a damaged vehicle being repaired is free to choose how to deal with loss of use and, if the owner seeks loss-of-use damages, it is up to a fact finder to determine the monetary value of the loss of use.

¶ 35. In Nashban Barrel, the supreme court held:

[D]amages should be allowed for loss of use (1) during a time period reasonably required for replacement, including a reasonable time to determine whether the vehicle is in fact repairable, and (2) in an amount equal to that which was actually expended (absent a showing that a temporary replacement was unavailable), provided such amount was not unreasonable.

Nashban Barrel, 49 Wis. 2d at 601-02. In Kim, the supreme court clarified the above limitation. The Kim court explained that the Nashban Barrel amount-actually-expended limitation applies only when an expenditure for a temporary replacement vehicle is actually incurred, but loss-of-use damages may be appropriate even when a party does not expend money for a temporary replacement vehicle:

The legal system attempts to place the injured party in as good a position as he or she would have been in had the tortious conduct not occurred and damages naturally and proximately caused by a tort are recoverable. Even though money damages for the cost of repairs or diminution of value of the personal property will be awarded, repairing or replacing the property may take time. Accordingly cotubs award claimants damages to make up for the loss of use of the property, a natural and proximate consequence of the tortious conduct. Allowing recoveiy for the loss of use of a vehicle puts the claimants in a position equivalent to that which they would have been in had the tortious conduct not occurred.
Although a claimant who does not procure a replacement for a vehicle destroyed by a tortfeasor "does not incur pecuniary loss in the form of rental payments for a substitute vehicle, the claimant may suffer substantial personal inconvenience due to the lack of an automobile. He may be forced to walk to work or to take inconvenient public transportation. He may be prevented from engaging in normal recreational pursuits or his enjoyment of those pursuits may be diminished."
As the Nashban court concluded, loss of use is not dependent on a claimant's having procured a replacement. The Nashban case makes this point very clearly by allowing recovery of damages for loss of use when a replacement vehicle is unavailable. Whether a replacement vehicle is unavailable or a claimant does not choose to procure a replacement, the claimant suffers the loss of the use of the vehicle.
... Accordingly we conclude that a claimant who does not procure a replacement vehicle may recover damages for loss of the use of the vehicle destroyed by a tortfeasor.
... When a claimant does not procure a replacement vehicle, it is more difficult to place a monetary value upon the value of the use of the car to the claimant. Nevertheless the claimant is entitled to receive as damages such sum as will compensate for the loss of use of the vehicle.

Kim, 176 Wis. 2d at 898-900 (citation and footnote omitted). The above "make whole" discussion in Kim leads us to the following conclusion: Apart from delays that might be excluded for reasons beyond the scope of this decision, a claimant may recover loss-of-use damages for the time his or her vehicle is unavailable because of the accident and efforts to repair the vehicle, and such damages are available regardless whether the claimant copes with loss of use by renting a temporary replacement vehicle, purchasing a vehicle, or taking some other action.

¶ 36. In this case, it turned out that American Family decided to repair Hellenbrand's minivan. How Hellenbrand dealt with the loss of use of his damaged minivan was up to him. The germane question on summary judgment — or for a fact finder should that be necessary — is the amount needed to compensate Hel-lenbrand for loss of use from the time of the accident to the time his minivan was repaired and returned to him.

¶ 37. We do not address whether Hellenbrand has presented evidence demonstrating loss-of-use damages relating to the time after he took possession of his newly purchased minivan. American Family, in the context of arguing that the time period should be excluded, asserts that Hellenbrand "suffered none of the compensable inconveniences mentioned in the Kim case." However, the Kim court did not attempt to comprehensively list compensable loss-of-use damages. At the same time, Hellenbrand does not tell us what his compensable damages for this time period are. Before the circuit court Hellenbrand requested damages equal to what he would have received if he had rented for the entire loss-of-use time period, but he does not repeat this request on appeal. It is tempting to address whether there is a material factual dispute regarding loss-of-use damages, but we are cognizant that the parties may have more to say on this topic. We also readily acknowledge that when a claimant chooses to cope with loss of use by a means other than renting a temporary replacement vehicle, the determination of the monetary value of loss of use may be complicated. See Kim, 176 Wis. 2d at 900 ("When a claimant does not procure a [temporary rental] replacement vehicle, it is more difficult to place a monetary value upon the value of the [loss of] use of the car to the claimant. Nevertheless the claimant is entitled to receive as damages such sum as will compensate for the loss of use of the [repaired] vehicle."). Thus, we choose not to address this topic because the parties have not focused their attention on it and because we must, in any event, remand with respect to loss of value.

¶ 38. Before leaving this topic, we address American Family's rebanee on a Lemon Law case, Nick v. Toyota Motor Sales, U.S.A., Inc., 160 Wis. 2d 373, 466 N.W.2d 215 (Ct. App. 1991), overruled in part by Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 542 N.W.2d 148 (1996). American Family argues that Nick supports its argument that once a new vehicle is purchased, the cost of alternative transportation is not compensable. American Family, however, misreads Nick. In Nick, we stated: "The acquisition and use of a new car after the period the initial vehicle was out of service is not com-pensable." Nick, 160 Wis. 2d at 385 (emphasis added). The cut-off date for loss-of-use damages in Nick was the date the defective vehicle was put back in service, not the date the consumer purchased a new vehicle. Id. We held: "The cost of alternate transportation while the vehicle was out of service is a collateral cost for which the consumer is entitled to compensation under sec. 218.015(l)(a), Stats." Id. (emphasis added). Therefore, if anything, Nick supports Hellenbrand's position that he is entitled to loss-of-use damages for the entire time period he was denied use of his damaged minivan.

¶ 39. Therefore, we reverse the circuit court's determination that the time period for loss-of-use damages ended when Hellenbrand purchased and took possession of a new minivan, and remand for further proceedings on this topic.

Conclusion

¶ 40. We reverse summary judgment in favor of American Family. On remand, two issues remain: first, the amount, if any, that Hellenbrand is entitled to for loss-of-value-after-repair damages and, second, the amount, if any, that Hellenbrand is entitled to for loss-of-use damages relating to the time period after he returned his rental vehicle and until his repaired van was returned to him. We do not hold that Hellenbrand is entitled to damages for these two categories of damages, only that such damages are, as a legal matter, available.

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

DYKMAN, J.

¶ 41. (concurring in part; dissenting in part). I agree with the majority's conclusions on the substantive issues. But I disagree with its conclusion concerning Hellenbrand's alleged failure to comply with the trial court's summary judgment procedure order. That order directed the parties to submit "[a] Statement of Proposed Findings of Fact or a stipulation of fact between or among the parties or a combination of both." The order was inconsistent with summary judgment methodology, and Hellenbrand should not be faulted for failing to comply with it. Findings of fact are unknown to summary judgment methodology. In Bong v. Cerny, 158 Wis. 2d 474, 478 n.3, 463 N.W.2d 359 (Ct. App. 1990), we faced a similar situation. We said:

The trial court made findings of fact when deciding the motion for summary judgment. Findings of fact are not made under summary judgment methodology. The trial court decides only whether "there is no genuine issue as to any material fact and [whether] the moving party is entitled to a judgment as a matter of law."

Id. (citations omitted).

¶ 42. If findings of fact are needed when a motion for summary judgment is being considered, it is a sure sign that the motion must be denied. Hellenbrand should not be faulted for failing to suggest findings of fact when to do so would contradict summary judgment methodology.

¶ 43. The majority translates the trial court's order into an order requiring "proposed undisputed facts." While that solves the problem for the majority, the trial court made no determination that Hellenbrand also made this translation. Were I writing for the majority, I would conclude that Hellenbrand was not required to file proposed findings of fact on a motion for summary judgment. Ultimately, however, the majority reaches the same result I do because it concludes that in any event, American Family is not entitled to summary judgment.

¶ 44. Nor do I agree that we should remand on the issue of whether Hellenbrand incurred compensable damages. We review summary judgment motions de novo. Cole v. Hubanks, 2004 WI 74, ¶ 5, 272 Wis. 2d 539, 681 N.W.2d 147. In reviewing the material submitted by the parties, we should decide whether Hellenbrand incurred compensable damages during the time his damaged vehicle was out of use. We have the trial court's record, the same record the trial court will have on remand. By declining to decide this question of law, all we have done is to invite another appeal.

¶ 45. While the amount of damages is subject to differing views, I have no difficulty in concluding that Hellenbrand was damaged during the time his vehicle was being repaired. Hellenbrand might have walked, used another of his automobiles, taken a bus or taxi, borrowed an automobile from a friend, or bought a temporary replacement vehicle, new or used. In each case his damages might be different, but in each case he would nonetheless be damaged. Juries should settle factual disputes. American Family is free to submit evidence showing little or no damage. Hellenbrand is free to submit evidence showing significant damages. I would not remand to ask the trial court to determine whether Hellenbrand incurred compensable damages, which is a question of law. I would conclude that he could have, and that a jury could separate reality from nonsense in arriving at a dollar figure for those damages.

¶ 46. For these reasons I respectfully concur in part and dissent in part.

       The only appellant in this case is Hellenbrand & Hellen-brand, S.C., because the order appealed was only final as to Hellenbrand & Hellenbrand, S.C. Nonetheless, Troy Hellen-brand was the main actor on behalf of Hellenbrand & Hellen-brand and we believe clarity for non-party readers will be served if we treat Troy Hellenbrand as if he were the plaintiff-appellant. Similarly, although multiple defendants and insurance companies are involved, we refer mostly to American Family. Any inaccuracies that arise from using this shorthand have no significance for purposes of the issues we resolve in this opinion.

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

       We use the term proposed "undisputed facts" even though the circuit court's order regarding summary judgment procedures actually required the parties to submit and respond to proposed "findings of fact." Findings of fact, however, are not made in the course of deciding summary judgment motions. To the contrary, the purpose of summary judgment methodology is to determine whether a lawsuit may be resolved without fact finding. Despite the repeated use of the term "findings of fact" before the circuit court, and now before this court, we have no doubt that the parties and the circuit court all understand that the circuit court's order required proposed undisputed facts.

       Hellenbrand was not required to present evidence showing the difference in the value of his van immediately before and immediately after the accident, even though this is one means of measuring damages. When a plaintiff asserts damages, he or she may present evidence of damages and, if the defendant is dissatisfied with damages based on the approach used by the plaintiff, the defendant may present evidence of damages based on an alternative approach. See Laska v. Steinpreis, 69 Wis. 2d 307, 314, 231 N.W.2d 196 (1975).

       The supreme court in Krueger quoted with approval language from a dissenting opinion in Kimball v. Antigo Building Supply Co., 261 Wis. 619, 53 N.W.2d 701 (1952), which speaks in terms of repairs needed to restore an automobile to its original condition. Krueger v. Steffen, 30 Wis. 2d 445, 449, 141 N.W.2d 200 (1966) (quoting Kimball, 261 Wis. at 627 (Currie, J., dissenting)). The obvious assumption contained in the Kimball language is that the owner has been made whole because the vehicle has been restored to its original condition and, as such, is just as valuable as it was prior to being damaged. Krueger, 30 Wis. 2d at 449-50.

       This case involves the liability of a tortfeasor, not an interpretation of policy language that applies between an insurance company and its insured. In Wildin v. American Family Mutual Insurance Co., 2001 WI App 293, 249 Wis. 2d 477, 638 N.W.2d 87, we concluded that, in light of the particular policy language in that case, the policy permitted the insurer to pay for repairs only, even if such repairs did not fully restore the vehicle to its pre-collision value. Id., ¶¶ 9-10.

       The circuit court's order states: "The plaintiffs seek to be compensated for a loss of market value after they have elected to proceed with very substantial repair of the vehicle. In reality, it appears the plaintiffs now claim that the decision that their vehicle was reparable was wrong." However, nothing in the proposed undisputed facts submitted by either party suggests that Hellenbrand had the choice of having his van repaired or having it declared a total loss.

       American Family asserts that the time period between July 19, 2001, when Hellenbrand's minivan was first made available to him by the repair shop, and August 3,2001, when Hellenbrand picked up his repaired minivan, should be excluded from the loss-of-use time period because this time, according to American Family, was "self-imposed by Hellenbrand's refusal to sign" his own insurance company's waiver form. Hellenbrand responds that he should not be penalized for rightfully refusing to sign a waiver form that precluded claims for additional repairs arising out of the same accident, particularly because it turned out that additional repairs were needed. It is not clear to us from the undisputed facts that this time should he excluded. For example, it is unclear whether American Family would have benefited by avoiding liability for additional repairs if Hellenbrand had signed the waiver form. Accordingly, this dispute should be resolved on remand.

       American Family seems to believe that it matters whether Hellenbrand intended to replace his minivan after the accident, regardless whether it was repaired and returned to him. It does not. Loss-of-use damages are unaffected by whether Hellen-brand wanted to retain the damaged and repaired minivan or to replace it.


source: Caselaw Access Project

author: LUNDSTEN, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Adrian Laurich, Petitioner-Appellant, v. Jon Litscher, Secretary, and Mickey Thompson, Warden, Respondents-Respondents.
    Court of Appeals

      No. 02-2479.

      Submitted on briefs April 10, 2003.

    Decided July 15, 2004.

    2004 WI App 150
    (Also reported in 686 N.W.2d 668.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Adrian Laurich, pro se, and the supplemental briefs of Virginia M. Antoine of Habush Habush & Rottier, S.C., Milwaukee.
    On behalf of the respondents-respondents, the cause was submitted on the brief oí Mary Batt, assistant attorney general, and Peggy A. Lautenschlager, attorney general, and the supplemental brief of Hillary Schwab, assistant attorney general, and Peggy A. Lau-tenschlager, attorney general.
    Before Dykman, Vergeront and Lundsten, JJ.
   LUNDSTEN, J.

¶ 1. This appeal raises the question whether the circuit court properly dismissed the petition for a writ of certiorari because inmate Laurich failed to exhaust his administrative remedies. The respondents contend that Laurich failed to exhaust because he failed to file a timely complaint under the Inmate Complaint Review System. We affirm the circuit court's order dismissing the petition. As discussed in greater detail below, the institution complaint examiner properly rejected Launch's complaint as late because Laurich failed to reasonably apprise the complaint examiner, by means of the complaint itself, of the facts Laurich believed constituted "good cause" for his late filing.

Background

¶ 2. Adrian Laurich allegedly engaged in misconduct while an inmate at Winnebago Correctional Center. In November 2001, a prison disciplinary committee issued a decision against Laurich finding that he had violated several rules. Laurich appealed the decision to the warden and, on December 17, 2001, the warden signed and issued a decision affirming the decision of the disciplinary committee. Sometime prior to issuance of the warden's decision, Laurich was transferred to Oshkosh Correctional Institution. Accordingly, the warden's decision was transmitted to Laurich by inter-institution mail.

¶ 3. Laurich attempted to challenge the warden's decision by a complaint through the Inmate Complaint Review System. He filed his complaint on January 14, 2002, twenty-eight days after the date the decision itself indicates it was issued.

¶ 4. On January 16, 2002, an institution complaint examiner rejected Launch's complaint because the complaint examiner found that the complaint was filed late under an administrative rule requiring that complaints be filed "within 14 calendar days after the occurrence giving rise to the complaint." Wis. Admin. Code § DOC 310.09(6). There is no dispute that the "occurrence" in this case was the issuance of the warden's decision. The institution complaint examiner assumed that Laurich would have received the warden's decision "shortly" after it was issued. The examiner wrote:

The [warden's decision] was signed on 12/17/01. [Lau-rich] would have received his copy shortly thereafter. He filed this complaint on 1/14/02, or 28 days after the decision. An Inmate Complaint must be filed within 14 calendar days of the date of the occurrence giving rise to the complaint. If you wish to appeal this rejection, you may request the form through this office.

¶ 5. Laurich timely appealed the institution complaint examiner's decision under Wis. Admin. Code § DOC 310.13(1) (1998). Pursuant to this code section, a corrections complaint examiner reviewed Laurich's appeal. In his request for review, Laurich asserted that he had not received a copy of the warden's decision until January 2, 2002. Laurich stated he did not know what caused the delay, but argued that the fourteen-day time limit should not start to run until he received a copy of the warden's decision.

¶ 6. The corrections complaint examiner made at least one inquiry. She determined that the warden's decision was mailed to Laurich at Oshkosh Correctional the day after it was issued. The corrections complaint examiner recommended dismissal of the appeal, writing:

Investigation and contact with the Northern Sector Chief showed that the appeal decision was mailed to the complainant on 12/18/01. The [corrections complaint examiner] has no reason to believe the complainant did not get his decision within a few days after that. As such, his complaint was untimely filed and in agreement with the rejection summary of the [institution complaint examiner], it is recommended this complaint be dismissed.

The Secretary of the Department of Corrections accepted the recommendation of the corrections complaint examiner and dismissed the appeal.

¶ 7. Laurich then commenced this action by filing a petition for a writ of certiorari. In his petition, Laurich again asserted that he did not receive the warden's decision until January 2, 2002, and asserted that the reason was delays caused by the Christmas and New Years holidays. The respondents moved to quash the petition, asserting that by filing his appeal from the warden's decision after the fourteen-day time period Laurich had failed to exhaust his administrative remedies. The circuit court agreed. It declined to reverse the department's determination that Laurich had filed his appeal late based on Laurich's mere assertion that he did not receive the warden's decision shortly after it was issued.

Discussion

¶ 8. The standards of review'applicable here were well summarized in State ex rel. Freeman v. Berge, 2002 WI App 213, 257 Wis. 2d 236, 651 N.W.2d 881:

Resolution of these issues requires that we interpret the statutes and regulations that govern review of DOC decisions and analyze the petition to determine whether it states a claim for relief. These are all questions of law, which we review de novo. When deciding whether a petition or complaint states a claim for relief, we take all facts pleaded and all inferences that can be reasonably derived from those facts as true. We dismiss a petition or complaint as legally insufficient "only if it is quite clear that under no conditions can [a petitioner or] a plaintiff recover."

Id., ¶ 12 (citations omitted).

¶ 9. The parties agree that the question whether Laurich exhausted his administrative remedies turns on the timeliness of the complaint he filed with the institution complaint examiner. If the institution complaint examiner properly rejected Launch's complaint as untimely, then Laurich has failed to exhaust his administrative remedies and his action was properly dismissed. Moreover, if the failure to exhaust can he determined from the petition, a court may dismiss the petition. See id., ¶¶ 12-13 ("[An inmate] is required by Wis. Stat. § 801.02(7)(b) to exhaust all available administrative remedies that DOC has promulgated by rule, and he must plead satisfaction of this requirement as one component of stating a claim for relief. Therefore, the circuit court in this case properly reviewed the petition, including the attachments, to determine whether it alleged facts from which the court could conclude that [the inmate] had exhausted available administrative remedies." (citations omitted)).

¶ 10. The first step in the Inmate Complaint Review System is the filing of a complaint under Wis. Admin. Code § DOC 310.09. Subsection (6) of § DOC 310.09 imposes a fourteen-day time limit for filing complaints:

An inmate shall file a complaint within 14 calendar days after the occurrence giving rise to the complaint, except that the institution complaint examiner may accept a late complaint for good cause.

Thus, the fourteen-day time limit is triggered by an "occurrence," and the parties agree that the occurrence in this case was the issuance of the warden's decision. Further, even a late-filed complaint may be accepted "for good cause."

¶ 11. In this case, the institution complaint examiner rejected Laurich's complaint because it was filed twenty-eight days after the "occurrence," that is, the issuance of the warden's decision. The institution complaint examiner assumed that Laurich would have received the warden's decision shortly after it was issued, and further assumed that nearly twenty-eight days had passed before Laurich filed his complaint. After his complaint was rejected, Laurich appealed to the corrections complaint examiner and asserted, for the first time, that he had not received a copy of the warden's decision until sixteen days after it was issued.

¶ 12. Laurich first asks this court to adopt a tolling rule providing that the fourteen-day time limit is tolled from the date a warden issues a decision until the date the decision is received by the inmate. Laurich then focuses his attention on the authority of the institution complaint examiner and the corrections complaint examiner to investigate and make factual findings regarding when Laurich received the warden's decision. In part, Laurich argues that the institution complaint examiner and the corrections complaint examiner in this case made an unwarranted factual assumption about when the warden's decision was delivered to Laurich. Further, Laurich argues that administrative code provisions prohibited factual resolution at the agency level of when the warden's decision was delivered to him. Laurich asserts that "[t]he only forum in which an inmate can have [this type of factual dispute] decided is the circuit court." Laurich argues that the petition he filed in the circuit court should have survived the respondents' motion to dismiss because the circuit court was obligated to accept the factual assertions in the petition as true, and his petition included the assertion that he filed his complaint within fourteen days of receiving the warden's decision.

¶ 13. The respondents contend that the corrections complaint examiner acted within her authority by conducting an investigation and making a reasonable factual inference that Laurich received the warden's decision shortly after it was issued and that Laurich filed his complaint well after the fourteen-day time limit. The respondents argue that, under the deferential standard applied to agency decisions, the circuit court properly dismissed the petition. Further, the respondents argue that resolution of a factual dispute regarding the date Laurich received the warden's decision is beyond the scope of certiorari review and, therefore, the circuit court was confined to the administrative record.

¶ 14. We conclude that the resolution of this issue turns, for the most part, on a topic not discussed by either party, namely, the proper interpretation of the time-limit language in Wis. Admin. Code § DOC 310.09(6).

¶ 15. The time-limit language in Wis. Admin. Code § DOC 310.09(6) plainly advises inmates that an "institution complaint examiner may accept a late complaint for good cause." The warden's decision — issued on a standard form with a date box — shows the "Date of Decision" as "12-17-01." When an inmate files a complaint knowing it is late, § DOC 310.09(6) effectively advises the inmate that his or her complaint will only be accepted if the institution complaint examiner determines that there is "good cause" for the late filing. Consequently, if the inmate believes there are facts constituting "good cause," he or she must advise the institution complaint examiner by means of including the asserted facts in the complaint. The failure to reasonably apprise the institution complaint examiner, by means of the complaint itself, of the facts the inmate believes constitute "good cause" waives the inmate's right to later complain that his or her complaint should have been accepted late for "good cause."

¶ 16. Our interpretation flows from the language of Wis. Admin. Code § DOC 310.09(6) and promotes the purpose of both the time limit and the "good cause" exception. For example, in this case there is no indication that the institution complaint examiner had any idea that Laurich was taking the position that the warden's decision had not been delivered to Laurich until January 2, 2002. Since the rule's directive that an "institution complaint examiner may accept a late complaint for good cause" necessarily authorizes the institution complaint examiner to conduct an investigation to determine whether "good cause" exists, our interpretation of the provision promotes a timely investigation of the inmate's claim.

¶ 17. Laurich seemingly argues that an institution complaint examiner may never reject a late-filed complaint because the examiner has no authority and, therefore, no ability to conduct the investigation necessary to determine when the inmate received the decision. More specifically, Laurich contends that the language of Wis. Admin. Code § DOC 310.11(3) (1998), in effect at the time he filed his complaint, prohibited the institution complaint examiner from looking to information outside the "record" when determining whether there was "good cause."

¶ 18. The version of § DOC 310.11(3) in effect when Laurich filed his complaint reads, in part: "the investigation of complaints under s. DOC 310.08(3) shall be limited to the record." It is agreed that Launch's complaint was filed pursuant to § DOC 310.08(3). However, we construe the language of § DOC 310.11(3) as applying to the institution complaint examiner's investigation of the merits of a complaint, not whether "good cause" exists.

¶ 19. Launch's interpretation of § DOC 310.11(3) runs headlong into the language of § DOC 310.09(6) which plainly authorizes an institution complaint examiner to accept a late-filed complaint. We think it obvious that § DOC 310.09(6) authorizes the institution complaint examiner to make inquiries to determine whether "good cause" exists, including whether there was a delay in the delivery of a decision. See Freeman, 257 Wis. 2d 236, ¶ 18 ("Alternatively, the [institution complaint examiner] may have decided that the complaint was not filed within fourteen days from the 'occurrence,' but [the inmate] had good cause for not doing so within fourteen days.").

¶ 20. Laurich asks this court to adopt a tolling rule providing that the fourteen-day time limit is tolled from the date a warden issues a decision until the date the decision is received by the inmate. Laurich points out that inmates typically have no control over when a decision is delivered to them and, therefore, it is unfair to adhere to a fourteen-day time limit without regard to when an inmate receives a decision. Ignoring a delivery delay, Laurich notes, may result in an inmate having little or no time to prepare and file a timely complaint. Laurich asks this court to adopt the "no control" reasoning employed in cases such as State ex rel. Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409 (Shimkus I). The State does not respond to this argument.

¶ 21. A court-imposed tolling rule is unnecessary. Unlike Shimkus I, where the inmate's action was statutorily barred if not commenced within a specified time limit, id., ¶ 2, here an institution complaint examiner and, ultimately, the secretary, has discretion to accept a late-filed complaint for "good cause." We conclude that a complaint examiner's "good cause" determination must include consideration of the time between the issuance of a warden's decision and the time the decision is made available to the inmate, if the inmate advises the institution complaint examiner of such alleged "good cause" in his or her complaint. See ¶ 15, above. Of course, an institution complaint examiner may consider this time period even if there is no mention of it in the complaint.

¶ 22. We now consider whether it is fair to Lau-rich to apply our interpretation of Wis. Admin. Code § DOC 310.09(6) in this case. We conclude that it is. Laurich knew when he filed his complaint that it was being filed twenty-eight days after the issuance of the warden's decision and well beyond the fourteen-day time limit. Laurich also knew that § DOC 310.09(6) authorizes an institution complaint examiner to accept a late complaint for "good cause." Consequently, Laurich knew or should have known that it was incumbent on him to advise the institution complaint examiner of facts constituting "good cause" for the late filing.

¶ 23. Our decision to apply our interpretation of the code provision to Laurich is supported by State ex rel. Shimkus v. Sondalle, 2000 WI App 262, 240 Wis. 2d 310, 622 N.W.2d 763 (Shimkus II). In Shimkus II, we held that when an inmate seeks the benefit of a tolling rule applied to a late-filed petition for a writ of certio-rari, the inmate must present proof justifying application of the tolling rule in a particular form: "by affidavit or other evidentiary submission." Id., ¶ 2. We applied that rule to Shimkus and affirmed the denial of his petition even though no prior authority plainly required the sort of proof discussed in Shimkus II. We explained:

We have considered whether it is fair to Shimkus to apply in this case the requirement that he present evidence of the date on which he deposited the petition in the institution mailbox, and we conclude that it is. Shimkus's brief in opposition to the State's motion in the circuit court shows he understood that, under his theory of the law, the date on which he deposited the petition in the institution mailbox was the critical date for determining whether it was timely filed. He may at that time have believed the copy of the disbursement request form was evidence of that date, but, when the State in its reply brief asserted it was not, Shimkus was put on notice the form might not adequately prove the critical date. He had the opportunity then to submit an affidavit supplying additional facts. Alternatively, he might have submitted prison regulations or procedures, of which the court could take judicial notice, that would, coupled with the form, establish the date on which he signed and dated the disbursement request was also the date on which he put the certiorari petition in the institution mailbox for forwarding to the Dodge County Clerk of Courts. However, Shimkus did neither.

Id., ¶ 16. Similarly here, Laurich was on notice that he was filing a late complaint and that his complaint would be rejected if the institution complaint examiner did not find "good cause."

¶ 24. Accordingly, we affirm the circuit court, but use different reasoning. We conclude that when Laurich failed to assert in his complaint that he did not receive the warden's decision until January 2, 2002, and indicate that this fact constituted "good cause" for his late-filed complaint, the institution complaint examiner properly rejected the complaint as late and Laurich waived his right to make his "good cause" argument in subsequent proceedings. Launch's failing is apparent from a review of the attachments to his petition for a writ of certiorari. The attached complaint shows that Laurich made no assertions suggesting "good cause" for accepting his late-filed complaint. It follows that Lau-rich failed to exhaust his administrative remedies, and the circuit court properly dismissed his petition.

By the Court. — Order affirmed.

       Laurich filed his complaint in January 2002, and changes to Wis. Admin. Code § DOC chapter 310 have been made in the interim. Most notably, § DOC 310.09(3) has been renumbered § DOC 310.09(6). To make application of our decision less confusing, we cite to the current code provisions unless otherwise noted.

       Laurich proceeded pro se in the circuit court and initially on appeal. We decided to appoint counsel to present supplemental briefing, and Virginia M. Antoine graciously agreed to accept this appointment on a pro bono basis. Our order directed the parties' attention to several issues, but did not directly suggest that Laurich had an obligation to put "good cause" information in his complaint.

       The current version of Wis. Admin. Code § DOC 310.11(3) reads, in pertinent part: "the processing of complaints under s. DOC 310.08(3) shall be limited to review of the record."

       We note that Wis. Admin. Code § DOC 310.11(5)(d), effective December 1, 2002, provides that an institution complaint examiner may reject a complaint when "[t]he inmate submitted the complaint beyond 14 calendar days from the date of the occurrence giving rise to the complaint and provides no good cause for the [institution complaint examiner] to extend the time limits."

       Laurich speaks in terms of the date the inmate "receives" the warden's decision. The record before us, however, does not indicate how mail is delivered to inmates. We purposefully speak in terms of the time the decision is made "available" to an inmate, but do not specify the meaning of that term in part because of the lack of factual development regarding prison delivery systems. Suffice it to say here that the purpose of the "good cause" provision is served by looking to the date the department makes a decision available to an inmate, even if the inmate knows of the availability and chooses not to take advantage of that availability.


author: DYKMAN, J. DEININGER, EJ. LUNDSTEN, J.

text:
    Mineral Point Valley Limited Partnership, Plaintiff-Appellant, v. City of Mineral Point Board of Review, Defendant-Respondent.

    Court of Appeals

      No. 03-1857.

      Oral argument March 25, 2004.

    Decided July 15, 2004.

    2004 WI App 158
    (Also reported in 686 N.W.2d 697.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Matthew J. Fleming of Murphy Desmond S.C., Madison. There was oral argument by Matthew J. Fleming.

      On behalf of the defendant-respondent, the cause was submitted on the brief of Robert Horowitz of Stafford Rosenbaum LLP of Madison. There was oral argument by Robert Horowitz.

    Before Deininger, EJ., Dykman and Lundsten, JJ.

       Petition to review denied 10-19-04.

   DYKMAN, J.

¶ 1. Mineral Point Valley Limited Partnership appeals from a judgment upholding a property tax assessment. The partnership contests the method the city assessor used to calculate the 2001 property tax on Fairview Heights Apartments, a subsidized housing project in the City of Mineral Point. Both the City of Mineral Point Board of Review and the trial court affirmed the assessment. On appeal, the partnership asserts that the assessor should have included an interest rate closer to the market interest rate of 8.75% when valuing the property, rather than its subsidized 1% rate. We conclude that a capitalization rate based on the subsidized interest rate is impermissible and reverse.

BACKGROUND

¶ 2. The partnership's real estate is a Rural Rental Housing Program project under § 515 of the federal 1949 Housing Act. This housing program provides low-income renters in rural areas with affordable housing by giving developers incentives to build there. One incentive is that the federal government provides developers interest credit for financing the property. In return, developers rent at below-market rates to people that meet the eligibility requirements of the program. The property is subject to numerous conditions and restrictions in return for the federal subsidy. For instance, the program restricts the owner from receiving annual income exceeding more than 8% of the owner's original equity payment for the life of the contract.

¶ 3. Here, the partnership's initial investment in the. property was 3% of the development cost. It obtained a fifty-year mortgage in 1990 at a commercial rate of 8.75%. In accordance with the housing program, the partnership pays a 1% interest rate and the federal government subsidizes the difference between the 8.75% and 1% rates.

¶ 4. For 2001, the city assessor used the 1% interest rate in his capitalization rate for the property, yielding a property value of $491,200. The partnership objected to the assessment. The board of review held a hearing and affirmed the assessment. The partnership appealed to the trial court, which remanded to allow the partnership to complete its cross-examination. After further hearing, the board reaffirmed the assessment, and the partnership appealed. The trial court affirmed the board. The partnership appeals.

STANDARD OF REVIEW

¶ 5. Because this is a certiorari review under Wis. Stat. § 70.47 (2001-02) we review the "record made before the board of review," not the trial court. Nankin v. Village of Shorewood, 2001 WI 92, ¶ 20, 245 Wis. 2d 86, 630 N.W.2d 141. We look for "any error in the proceedings of the board which renders the assessment or the proceedings void." Wis. Stat. § 70.47(13). We consider four factors:

(1) Whether the board acted within its jurisdiction; (2) whether the board acted according to law; (3) whether the board's action was arbitrary, oppressive or unreasonable, representing its will rather than its judgment; and (4) whether the evidence was such that the board might reasonably make the order or determination in question.

Nankin, 245 Wis. 2d 86, ¶ 20. More specifically, an assessment "made in accordance with the statutory mandate must be upheld if it can be supported by any reasonable view of the evidence." Id., ¶ 21. We will not make an independent assessment of the property; instead we remand to the board for further proceedings if any errors render the assessment void. Id.

DISCUSSION

¶ 6. The parties dispute a narrow issue: When an assessor uses the income approach to assess federally subsidized housing, should he or she use a capitalization rate which includes the subsidized or actual rate of mortgage interest? We recently addressed the valuation of federally subsidized property for tax purposes in Bloomer Housing Limited Partnership v. City of Bloomer, 2002 WI App 252, 257 Wis. 2d 883, 653 N.W.2d 309. In that case, we explained the law governing property valuation generally, and subsidized housing specifically:

The law governing property valuation for tax purposes is found in Wis. Stat. ch. 70. Wisconsin Stat. § 70.32(1) provides that real property be valued at the "full value" which could ordinarily be obtained at a private sale. "Full value" means the fair market value, that is, the amount the property would sell for in an arms-length transaction between a willing buyer not obligated to buy and a willing seller not obligated to sell. The statute also provides that property be valued according to the Wisconsin Property Assessment Manual, although use of the manual is improper when its provisions would not arrive at the "full value" of the assessed property.
In terms of subsidized housing, the assessment manual suggests three approaches to valuation: (1) the sales comparison approach, reflected in Wis. Stat. § 70.32(1), based on a recent arms-length sale of the property or a reasonably comparable one; (2) the cost approach, based on the expenses involved with creating the housing; and (3) the income approach, which values the property based on the income it generates.

Id., ¶¶ 14-15 (citations omitted).

¶ 7. The parties here, like those in City of Bloomer, agree that the income approach is the most appropriate method to value the property. "The income approach converts the future benefits likely to be derived from the property into an estimate of present value." Id., ¶ 16. The Wisconsin Property Assessment Manual instructs on how to use the income approach. 1 Wisconsin Property Assessment Manual 9-28 (rev. Dec. 2000) (hereinafter "manual"). One of the steps in applying the income approach is to derive a capitalization rate, which has included in it a mortgage rate. Generally, the manual directs assessors to "be aware of what is happening in the market. All of the information needed for the income approach is either obtained or verified by what the assessor finds in the marketplace." Manual at 9-8. With regard to federally subsidized housing specifically, the manual directs the assessor to consider mortgage terms and conditions in the income approach. Manual at 9-30.

¶ 8. Here, the parties dispute which mortgage rate must be included in the capitalization rate. The city contends that it should be the 1% subsidized rate because that is what the partnership actually pays on its mortgage. It also asserts that the subsidy benefits the property, not the tenants, and that the property value should reflect this benefit. The partnership contends that the mortgage rate should be closer to the stated market rate of 8.75% because numerous restrictions affect the property. It argues that the subsidy benefits the tenants and that an investor would not consider it a value-enhancing feature because of the restrictions on rents and annual profits.

¶ 9. Both parties assert that the manual permits the use of their respective rate, which might suggest that an assessor has discretion in how to account for the mortgage rate. But which mortgage rate the assessor uses significantly impacts the value of the property. Specifically, the 1% rate yields a property value of $491,200; whereas a rate of 9.5% yields a value of $178,100. The ratio between these values is more than two to one.

¶ 10. We conclude that an assessor cannot be free to choose between the mortgage subsidy rate and the mortgage market rate when using the income approach to valuing federally subsidized housing. Nor can a board of review choose to use the subsidized rate when making its determination as to the fair value of federally subsidized housing. We ordinarily grant great deference to assessors and boards of review. The amount at which property is valued can vary depending on matters of judgment and expertise. But the narrow issue we decide today is a matter of almost mathematical precision. A property cannot, at the same time be worth both $491,200 and $178,100, when the only difference in the values is whether a subsidized mortgage interest rate or a market interest rate is used. Two identical and adjacent real estate properties cannot have full values that differ by over 100% whether they lie in the same or adjoining municipalities.

¶ 11. We must be particularly concerned with ensuring uniformity in the valuation method for federally subsidized housing because it may be more subject to diverse assessments than other properties. Because of restrictions on sale, less market data is available for property of this nature. Subsidized housing is not comparable to commercial, unencumbered properties. Manual at 9-30. Consequently, the income approach is usually the only method available and the assessor must value the properties individually, using actual income and expenses of the property. Metropolitan Holding Co. v. Board of Review, 173 Wis. 2d 626, 629, 495 N.W.2d 314 (1993).

¶ 12. We therefore turn to City of Bloomer for guidance on which mortgage rate fairly reflects the unique nature of federally subsidized housing. There, we upheld a trial court finding that the city's assessment based on the subsidized interest rate was excessive because it "failed to accurately account for" restrictions affecting the value of property. City of Bloomer, 257 Wis. 2d 883, ¶ 20. We reasoned that:

The beneficiaries of the subsidy, according to the manual, are the tenants. Nonetheless, the subsidy affects the property's value. Any potential buyer would reasonably consider the subsidy's value when determining the appropriate price. The subsidy, however, is not determinative. It must be weighed with all the other factors influencing value.

Id., ¶ 23. We also rejected the city's suggestion that the restrictions and conditions do not hinder the property value. Id., ¶ 23. We recognize that in Bloomer our review was of a trial court's determination of a claim for excessive assessment under Wis. Stat. § 74.37, as opposed to a certiorari review here. Still, in Bloomer, we affirmed the trial court's conclusion that an assessor had erred by using a subsidized interest rate to determine the fair market value of subsidized housing.

¶ 13. We conclude that if the use of a market rate was proper in City of Bloomer, the use of a subsidized interest rate here cannot be. Thus, the board of review did not act according to law when it accepted an assessment using the subsidized rate. Based on the result in City of Bloomer, we conclude that a capitalization rate based on a subsidized interest rate is impermissible, and that a market rate must be used, together with "all the other factors influencing value", to produce the fair value of the partnership's real estate. Id., ¶ 23. We follow Bloomer's conclusion that an assessment based on a subsidized interest rate was excessive. Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997) (holding that the court of appeals may not overrule, modify, or withdraw language from a previously published decision of the court of appeals).

¶ 14. Judgment reversed with directions to remand to the board of review for proceedings consistent with this opinion.

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

DEININGER, EJ.

¶ 15. {concurring). I agree with the result reached in the majority opinion and with much of its reasoning. I write separately to amplify why the dispute in this case is not simply over the fair market value of a particular piece of property on a given day. If it were, I would be hard pressed not to agree with the City's assertion that the choice between the two valuations is simply a question of fact, to be determined by the fact finder (here, the board of review), whose determination we should accept because it found the City's assessor more credible than the partnership's appraiser.

¶ 16. I recognize that, in the absence of a recent arms-length sale, property valuation depends largely on matters of judgment and expertise. I am also aware that appraised values of a particular property can differ sharply, and that it is most often the fact finder's proper role to assess the weight and credibility of competing opinions of fair market value. See, e.g., Schorer v. Schorer, 177 Wis. 2d 387, 396-97, 501 N.W.2d 916 (Ct. App. 1993). Here, however, the discrepancy in the opposing valuations boils down to the choice between two mortgage interest rates for inclusion in the capitalization rate — the subsidized rate of 1% or the actual or market rate of 8.5% — and, depending on which is chosen, the resulting valuation of the property will either be close to $500,000 or less than $200,000.

¶ 17. Mineral Point Valley's property is far from unique, in that it is by no means the only federally subsidized housing development in Wisconsin. This means that the choice between the two mortgage rates at issue here must be made by assessors throughout the state whenever the income approach is employed to determine the value of properties that are subject to the same types of benefits and restrictions as the one before us. Like my colleagues on this panel, I therefore conclude that the choice of which interest rate to plug into the valuation calculation is not the type of "fact" that can or should change from case to case, based solely on which party in an assessment dispute produces the more credible expert on a given day.

¶ 18. The supreme court addressed a similar technical valuation issue in Soo Line R.R. Co. v. DOR, 97 Wis. 2d 56, 59-60, 292 N.W.2d 869 (1980). The court there discussed what standard should be applied when an appellate court reviews a trial court's decision regarding a valuation derived from the application of an "abstract formula." Id. The supreme court affirmed this court's decision to set aside a trial court order which sustained the Department of Revenue (DOR)'s valuation of railroad property for property tax purposes. In doing so, the court rejected the DOR's argument that the valuation in question was a factual determination which could only be disturbed if contrary to the great weight and clear preponderance of the evidence. See id.

¶ 19. The court concluded that the determination at issue required "an examination of the formula that was used to arrive at the challenged valuation", which distinguished it from more typical trial court fact and credibility determinations, to which reviewing courts, for good reasons, defer. See id. at 60. The court explained:

If the question here at issue were more in the nature of the typical factual determination that trial courts are required to make, we would find this argument quite persuasive. Generally, factual determinations are made on the basis of the factfinder's observations of the witnesses as they relate their version of the events in question. Particularly where different witnesses give conflicting testimony, the factfinder's opportunity to observe the witnesses as they testify under oath and subject to cross-examination places him in a much better position to evaluate the truthfulness of their respective testimony. A witness' demeanor on the stand and the manner in which he answers questions are indications' of truthfulness which cannot he conveyed in a written record. It is primarily for this reason that appellate courts have traditionally accorded substantial weight to factual findings made at the trial level.
However, the question to be determined here has little to do with the credibility of witnesses, at least in the sense that phrase is generally used. The DOR's assessment of the Soo Line's operating property is the product of an abstract formula devised by DOR and applied to the facts or data which are themselves undisputed. In determining whether the DOR's assessment was substantially more or less than the actual fair market value of the Soo Line's property, the trial court was required to decide whether the application of that formula in this case produced a result which substantially reflected the full value of the railroad. This determination requires not so much an evaluation of the truthfulness of the witnesses, but rather an examination of the formula that was used to arrive at the challenged valuation. It requires an understanding and rational assessment of the mathematic and economic principles underlying the basic formula and the specific adjustments made by the DOR.

Id. at 59-60.

¶ 20. I am aware that this court previously rejected an attempt by an appellant, based on the analysis in Soo Line, to have this court apply a de novo standard in reviewing a trial court's choice between competing expert valuations of a business for purposes of a divorce. See Siker v. Siker, 225 Wis. 2d 522, 530-32, 593 N.W.2d 830 (Ct. App. 1999). We acknowledged in Siker that the competing evaluations in the divorce were arguably based on "abstract formulas", id. at 530, but we nonetheless distinguished Soo Line because, among other things, Soo Line involved a "statutorily prescribed judicial review of a taxing authority's property value assessment," id. at 531. We noted that the question before the courts in Soo Line involved whether the DOR's assessment method conformed "to state and federal laws and constitutions." Id. (citation omitted). We concluded that a de novo appellate determination of the proper valuation method might be appropriate where a court's role is "to ensure that a taxing authority had discharged its responsibilities to the public at large, as well as to an individual taxpayer, in accordance with applicable law." Id. at 531-32. In other property value determinations, however, such as those made in divorce property divisions, the clearly erroneous standard of review for factual findings should be applied. Id.

¶ 21. I believe that the very rationale that served to distinguish Soo Line from Siker, supports our applying the Soo Line standard of review in this case. This, like Soo Line, is a statutorily prescribed judicial review of a taxing authority's property value assessment. Our function is not simply to ensure that the board of review made a reasonable call based on the testimony of competing experts, but also to ensure that it "discharged its responsibilities to the public at large, as well as to an individual taxpayer, in accordance with applicable law." Id. As in Soo Line, I conclude that, with respect to the present dispute over which mortgage interest rate to employ in valuing federally subsidized housing for tax assessment purposes, "an appellate court need not accord special deference to [a fact finder]'s ultimate factual determination" that "rests upon an abstract formula." Soo Line, 97 Wis. 2d. at 60.

¶ 22. The more difficult question, however, is, having concluded that we should decide de novo which interest rate is the correct one to use in the valuation formula for this property, how are we to choose between them? I readily acknowledge my lack of expertise on the question and confess that I have no informed opinion on which interest rate will produce the "correct" valuation of federally subsidized housing projects. This panel has chosen to adopt the mortgage interest rate that was affirmed as having been properly applied in Bloomer Housing Ltd. Partnership v. City of Bloomer, 2002 WI App 252, 257 Wis. 2d 883, 653 N.W.2d 309. I agree with my colleagues that applying the Bloomer result is appropriate inasmuch as this court concluded that the determination in Bloomer was "consistent with the assessment manual." Id., ¶ 23. Moreover, because we are bound by our prior published decisions, see Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997), I would find it hard to explain, in light of our discussion and the result reached in Bloomer, why the opposite result is the correct one here, as a matter of law.

¶ 23. I recognize that some persons may be firmly convinced, with ample justification, that the subsidized mortgage interest rate is indeed the correct rate to employ in order to arrive at the market value of subsidized housing. In at least one unpublished decision of this court (Rhinelander Family Housing v. City of Rhinelander, No. 96-2216, unpublished slip. op. (Wis. Ct. App. Jan. 14, 1997)), we upheld a board of review's assessment employing the subsidized rate. Our conclusion today, however, is that consistency on the point at issue is required, and that the rate to be employed in this "abstract formula" is not a fact that should be allowed to vary from Mineral Point to Bloomer to Rhinelander, based on the credibility of the witnesses who may appear before a board of review. If a different rule is to apply, it must come from the supreme court or the legislature, or perhaps from the DOR by way of clearer direction in the assessment manual.

LUNDSTEN, J.

¶ 24. (concurring). I join the lead opinion, but write separately for two reasons.

¶ 25. First, based on the briefs, oral argument, and my own research, it appears to me that a fiction is at work. Assessors are supposed to value subsidized housing at its fair market value yet, in common situations like the one before us, they may not take into consideration factors that directly affect fair market value. For example, at argument the parties agreed that federal tax credits significantly enhance the value of subsidized housing, yet Wis. Stat. § 70.32(lg) prohibits assessors from considering these tax credits. There may be some valuable policy reason underlying this prohibition. There may not be. But it is one reason assessments of subsidized housing often do not reflect actual fair market value. A similar problem seems to be at work with respect to operating income. In my view, such limitations on assessors prevent an honest appraisal of subsidized housing and create the conundrum we face today.

¶ 26. Second, while I join the lead opinion and not the concurring opinion, I commend Judge Deininger on his intelligent and candid approach to the matter. Sometimes we need to admit that the pieces of the puzzle do not fit.

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

       We noted in City of Bloomer, 2002 WI App 252, 257 Wis. 2d 883, 653 N.W.2d 309, that the Wisconsin, Property Assessment Manual provides that the beneficiaries of the interest subsidy are the tenants, not the property. Id. at ¶ 23. It still does.

       At the board hearing, the partnership's expert testimony was based on a 9.5% interest rate as the base rate for the property value calculation. The stated mortgage rate was 8.5%. The partnership's brief explains that the 9.5% value "implicitly includ[es] the recapture rate component, but before adding the tax rate."

       When originally enacted in 1848, article VIII, section 1 of the Wisconsin Constitution provided: "The rule of taxation shall he uniform, and taxes shall be levied upon such property as the legislature shall prescribe." The first seven words of article VIII, section 1 still exist in today's constitution, though several exceptions to this rule have been added by constitutional amendment. The parties have not briefed the effect, if any, of this provision, and cases since 1848 have focused on uniformity within a taxing district. See Knowlton v. Supervisors of Rock County, 9 Wis. 378 (1859), Weeks v. The City of Milwaukee and Others 10 Wis. 186 (1860), and Nankin v. Vill. of Shorewood, 2001 WI 92, ¶ 20, 245 Wis. 2d 86, 630 N.W.2d 141. Since 1931, the entire state is a taxing district. See Wis. Const. art. VIII, § 10(3), Laws of 1931, ch. 4, § 2 and Wis. Stat. § 70.58. We leave until another day an inquiry into how the framers of our constitution would have viewed a variation of over 100% between adjacent and identical real estate located in the same district or two taxing districts.