author: VERGERONT, EJ.

text:
    Angelina Mach, Plaintiff, v. Frank Allison, Defendant-Third-Party Plaintiff-Appellant, v. Kathleen Mach, Third-Party Defendant, NBC-15, Christine Leonard, Benedek Broadcasting and National Casualty Company, Third-Party Defendants-Respondents. Frank Allison, Plaintiff, v. NBC-15, Christine Leonard, Benedek Broadcasting and ABC Insurance Company, Defendants.
    Court of Appeals

      No. 02-0928.

      Submitted on briefs September 10,2002. —
    Decided December 5, 2002.

    2003 WI App 11
    (Also reported in 656 N.W.2d 766.)

      On behalf of the defendant-third-party plaintiff-appellant, the cause was submitted on the briefs of
      John L. Cates, Paul A. Kinne, and Heath P. Straka of Gingras, Cates & Luebke, S.C., Madison.
    On behalf of the third-party defendants-respondents, the cause was submitted on the brief of Robert J Dreps of LaFollette Godfrey & Kahn, Madison.
    Before Vergeront, EJ., Roggensack and Deininger, JJ.
   VERGERONT, EJ.

¶ 1. This defamation action concerns a Channel 15 television news broadcast on a dog trainer, Frank Allison, and a dog placed with him for training that subsequently died. Allison appeals the tried court's orders dismissing his first amended complaint and third amended complaint on Channel 15's motions for summary judgment. He contends there are disputed factual issues on whether the alleged defama-toiy implication in the first amended complaint — that he was the dog's killer — was false, and on whether the additional defamatory implications alleged in the third amended complaint were reasonably implied by the broadcast. Therefore, he asserts, he is entitled to a trial on these issues.

¶ 2. We conclude the trial court correctly dismissed the first amended complaint because Channel 15 was entitled to judgment as a matter of law that the implication that Allison was the killer of the dog was not false. We also conclude the trial court erroneously exercised its discretion in allowing further amendment to the complaint after the motion for summary judgment was granted because the court did not apply the correct legal standard. In order to allow the trial court the opportunity to exercise its discretion applying the correct legal standard, we remand for that purpose. In the event the trial court on remand decides to deny leave to amend the first amended complaint, after exercising its discretion based on the correct legal standard, that decision will terminate the action. However, in the event the trial court on remand decides to grant leave to amend, we take up the second issue raised by Allison: whether the trial court correctly granted summary judgment on the third amended complaint. We hold that the trial court was correct with respect to six of the newly alleged defamatory implications, because, we conclude, the broadcast did not fairly and reasonably convey those implications. However, we conclude the broadcast did fairly and reasonably convey the implication that Allison used beating or violence as a means of training the dog. Accordingly, if the trial court decides to allow amendment to the first amended complaint, we affirm in part summary judgment on the third amended complaint, reverse in part, and direct a trial on the alleged defamatory implication that Allison . used beating or violence as a means of training the dog.

BACKGROUND

¶ 3. The first amended complaint alleged the following. Allison specializes in training aggressive and dangerous dogs that are considered untrainable, and Angelina Mach agreed to have him train her dog, Chance, because the dog was aggressive, out of control, and had bitten several people. Chance attacked Allison when he entered the dog's kennel to put it on a leash, and he "hit Chance with a stick in order to defend himself from serious bodily injury or even death and to exit the kennel." Mach took Chance home the next day, and Chance died within a few days. The autopsy report showed that Chance died from severe thoracic disease, a condition pre-existing the dog's stay with Allison. The complaint asserted that the news report "negligently and falsely portrayed and implied that [he] was [Chance's] killer . . .," and it listed seven specific statements, omissions, and visual images which allegedly conveyed this false portrayal and implication.

¶ 4. Channel 15 moved for summary judgment on the ground that Allison could not prove that the alleged defamatory implication — that he was the dog's killer— was false. In support of its motion, Channel 15 relied on the affidavit of Dr. Howard Steinberg who authored the autopsy report and averred that he held the opinions expressed in the report to a professional degree of probability. The report came to this conclusion: "The immediate cause of death is a result of severe thoracic disease. However, the traumatic injuries and the underlying congenital (most likely) heart problems most likely contributed to this dog's death." In response, Allison argued that even if the trauma in some way contributed to the dog's death, the news report created the inference that Allison "inappropriately killed Chance."

¶ 5. The trial court issued a written decision on June 28, 2000, granting Channel 15's motion to dismiss the first amended complaint. The court stated that Allison had the burden of presenting evidence from which a reasonable jury could find that the alleged statement or implication in the news report that he was responsible for Chance's death was false. The court concluded that Allison had not done this, because the only evidence — the autopsy report — showed that Allison had contributed to the dog's death.

¶ 6. On July 5, 2000, Allison moved for reconsideration, or, in the alternative, to amend the first amended complaint. Allison submitted with this motion an affidavit of counsel, which attached three letters from doctors of veterinary medicine that, Allison contended, showed there was a dispute over whether Allison had caused the dog's death. Allison also argued that the trial court had construed the alleged defamatory implication too narrowly, and even if he could not prove the falsity of the implication that he killed the dog, he could prove he did not kill the dog without justification and did not perform the functions of a dog trainer in a reckless, dangerous, or unprofessional manner. The proposed second amended complaint added these two additional assertions of falsity.

¶ 7. Channel 15 opposed both requests. In objecting to an amendment to the first amended complaint, it argued that there was no precedent for allowing an amendment after a motion for summary judgment was granted, no new facts had come to Allison's attention, Allison had had nearly two years to decide what statements or implications in the news report he viewed as defamatory, and it was unjust to permit him now to start over with different ones after losing on the summary judgment motion.

¶ 8. The trial court denied the motion for reconsideration, rejecting Allison's argument that the court should have considered negative implications from the broadcast that were not specifically pleaded. However, the court decided to grant the motion to amend. The court stated that it had the discretion to grant a motion to amend until and even after judgment if justice so requires, such motions were to be liberally granted unless the other party would be prejudiced, and Channel 15 was not prejudiced because it had notice from the pleadings, briefs, and depositions of the operative facts and allegations giving rise to. the defamatory implications of the broadcast that were pleaded in the proposed amended second complaint.

¶ 9. Allison eventually filed a third amended complaint that alleged that the broadcast had negligently and falsely portrayed and implied that: (1) he intentionally killed the dog without provocation or justification; (2) he recklessly killed the dog without provocation or justification; (3) he intentionally caused serious bodily injury to the dog without provocation or justification; (4) he recklessly caused serious bodily injury to the dog without provocation or justification; (5) he intentionally caused serious bodily injury to the dog without being attacked by the dog; (6) he recklessly caused serious bodily injury to the dog without being attacked by the dog; and (7) his training method was to beat or use violence as a means of training this dog. For each of these alleged false portrayals and implications, the complaint listed a number of statements, omissions, and images that allegedly conveyed the false portrayal and implication.

¶ 10. Channel 15 moved for summary judgment, asserting that no reasonable jury could construe the news story to convey any of these defamatory implications. In opposition, Allison submitted his affidavit in which he averred the following: (1) the news report showed him training two dogs, neither of which were Chance; (2) he was training for protection work in which dogs are trained to bite only on command of the dog's master; (3) Chance did not receive that type of training, but instead was to receive obedience training, which is designed to be gentle and to help a dog gain trust in people; and (4) Chance attacked him while the dog was still under observation and while he was trying to gain the dog's trust by feeding him and speaking to him. Allison also submitted portions of his deposition, of the reporter's and of the editor's.

¶ 11. The trial court granted Channel 15's motion. With respect to the first six implications, the court concluded the broadcast was not capable of conveying those implications because the reporter stated that Allison said the dog attacked him and other statements convey that Allison did nothing wrong. With respect to the seventh implication, the court concluded that the broadcast was not capable of conveying the meaning that Allison used beating or violence as a means of training Chance. The court reasoned that although the videotape showed Allison in protective clothing with a dog attacking him, it is clear that dog is not Chance, since Chance is dead, and the only specific reference to how Chance was trained was Allison's statement, "[i]n starting training I do recommend a 24 hour fast."

DISCUSSION

First Motion for Summary Judgment

¶ 12. The elements of a defamatory communication are: (1) a false statement, (2) communicated by speech, conduct, or in writing to a person other than the person defamed, and (3) the communication is unprivileged and is defamatory, that is, tends to harm one's reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 534, 563 N.W.2d 472, 481 (1997). The "statement" that is the subject of a defamation action need not be a direct affirmation, but may also be an implication. Milkovich v. Loran Journal Co., 497 U.S. 1, 22 (1990).

¶ 13. The dispute on the first motion for summary judgment concerns the first element of a defamation action — falsity. In a defamation action brought by a private figure against a media defendant, the plaintiff has the burden of proving that the speech at issue is false; this requirement is imposed in order to avoid the chilling effect that would be "antithetical to the First Amendment's protection of true speech on matters of public concern." Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986); see also Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d at 543 n.18. Allison concedes that he has the burden of proving the falsity of the alleged defamatory implication.

¶ 14. We review the grant or denial of summary judgment de novo, and we apply the same standard as does the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). A party is entitled to summary judgment if there are no disputed issues of fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). In evaluating whether a defendant is entitled to summary judgment, we examine the defendant's submissions to determine whether they establish a prima facie defense to the claim; if they do, we then determine whether the plaintiffs submissions in response create a genuine issue of material fact that defeats the motion for summary judgment and entitles the plaintiff to a trial. Preloznik v. Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). "Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence." Wis. Stat. § 802.08(3).

16, 7]

¶ 15. The first step of the methodology is to analyze the complaint to determine whether it states a claim. Preloznik, 113 Wis. 2d at 116. In doing so in this case, we bear in mind that "in an action for libel or slander, the particular words complained of shall be set forth in the complaint." Wis. Stat. § 802.03(6). We conclude that the first amended complaint does meet this standard and does state a claim for relief. We confine our analysis in the succeeding steps of summary judgment methodology to the specific implication that is alleged to be false — that Allison was the dog's killer.

¶ 16. The autopsy report submitted by Channel 15 contains an admissible expert opinion that "[T]he immediate cause of death is a result of severe thoracic disease. However, the traumatic injuries and the underlying congenital (most likely) heart problems most likely contributed to this dog's death." It is clear from the report that the traumatic injuries referred to are those caused by Allison. We conclude this submission establishes á prima facie defense that the statement or implication that Allison killed the dog was not false.

¶ 17. Since Allison has the burden of proving the falsity of the statement that he killed the dog, in order to defeat Channel 15's motion he had to present evidence that, it believed, would establish the falsity of the statement. Transp. Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 292, 507 N.W.2d 136 (Ct. App. 1993). The submissions that make this showing, in Allison's view, are the three letters from veterinarians he submitted in support of his unsuccessful motion for reconsideration, only one of which had been filed with the court before it ruled on the first motion for summary judgment. (See footnotes 2 and 3.) However, we address all three together at this time, rather than deferring discussion of the two. None of the three meets the requirements of Wis. Stat. § 802.08(3). The letters themselves are not in affidavit form and, as unsworn statements, are not admissible at trial. Holsen v. Heritage Mut. Ins. Co., 182 Wis. 2d 457, 466, 513 N.W.2d 690 (Ct. App. 1994), vacated on other grounds, 185 Wis. 2d 1, 517 N.W.2d 448 (1994). Counsel's sworn statement that they are true copies of letters from the signatories does not make the letters admissible at trial to prove the truth of their contents, because the facts and opinions in the letters are not based on counsel's personal knowledge. See Hopper v. City of Madison, 79 Wis. 2d 120, 130, 256 N.W.2d 139 (1977).

¶ 18. Since the autopsy report, properly incorporated into Dr. Steinberg's affidavit, is the only submission in proper form, the remaining question is whether that is sufficient to place in dispute the falsity of the implication that Allison killed the dog. We agree with the trial court that it is not. Allison argues that, based on the autopsy report, a jury could decide that the cause of Chance's death was thoracic disease and not anything Allison did. We do not agree. With no other expert testimony on an issue that both parties agree requires expert testimony, a jury would have no basis for coming to any conclusion other than that offered by Dr. Stein-berg on the cause of the dog's death. There is, therefore, no evidentiary basis on which a jury could conclude that the injuries caused by Allison did not contribute to the dog's death. Accordingly, we conclude the trial court properly granted Channel 15's first motion for summary judgment.

Amendment after Grant of Summary Judgment Motion

¶ 19. Channel 15 contends that we need not decide whether the trial court correctly granted its second motion for summary judgment because the court erroneously exercised its discretion in allowing an amendment to the first amended complaint after it granted summary judgment on that complaint. Since we may affirm a trial court on a different ground than that relied on by the trial court, see Vanstone v. Town of Delafield, 191 Wis. 2d 586, 594-95, 530 N.W.2d 16 (Ct. App. 1995), this issue is properly before us.

¶ 20. Wisconsin Stat. § 802.09(1) provides in part:

(1) [Amendments.] A party may amend the party's pleading once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order under s. 802.10. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given at any stage of the action when justice so requires.

The decision whether to grant a motion to amend a complaint lies within the trial court's discretion. Grothe v. Valley Coatings, Inc., 2000 WI App 240, ¶ 12, 239 Wis. 2d 406, 415, 620 N.W.2d 463. We affirm a trial court's exercise of discretion if the court applied the correct legal standard to the facts of record in a reasonable manner. See id.

¶ 21. Channel 15 argues that the court applied an incorrect legal standard because it considered only whether the operative facts in the proposed amended complaint were the same as those already known to Channel 15, and not the timing of the motion to amend and Allison's reasons, if any, for not bringing the motion sooner. Moreover, Channel 15 contends, the manner in which the court analyzed the operative facts does not take into account particular characteristics of actions alleging defamation by implication.

¶ 22. Allison responds that the trial court here applied the proper standard, which is that trial courts are to freely grant leave to amend pleadings so as to present the entire controversy unless there is prejudice to the opposing party because of the lack of a timely opportunity to meet the issues created by the amendment. See, e.g., Wipfli v. Martin, 34 Wis. 2d 169, 174, 148 N.W.2d 674, 677 (1967); Tri-State Home Improvement Co. v. Mansavage, 77 Wis. 2d 648, 658, 253 N.W.2d 474 (1977). However, in those cases the amendment was sought just before or during trial, and therefore the analysis is not particularly helpful in this case.

¶ 23. The trial court relied on the statement in Soczka v. Rechner, 73 Wis. 2d 157, 162, 242 N.W.2d 910 (1976), that "it is within the trial court's discretion to allow amendment of pleadings until and even after judgment." That language came from a predecessor to Wis. Stat. § 802.09(1), which provided: "The court may, at any stage of any action or special proceeding before or after judgment, in furtherance of justice and upon such terms as may be just, amend any process, pleading or proceeding ... ." Wis. Stat. § 269.44 (1973). Channel 15 does not suggest that the elimination of the phrase "before or after judgment," when the civil procedure statutes were renumbered and revised by S. Ct. Order, 67 Wis. 2d 632 (eff. Jan. 1, 1976), indicates an intent to preclude allowing amendments after a motion for summary judgment has been granted; and we conclude it does not indicate that intent. The current language "at any stage of the action" is plainly broad enough to include one week after a motion for summary judgment is granted. In addition, the relevant Judicial Council Committee Notes indicate no change was intended.

¶ 24. Thus the statement in Soczka that a trial court may grant a motion to amend, either before or after judgment, is still a correct statement of the law. However, the facts and reasoning in Soczka suggest that whether the amendment is before or after judgment does have a bearing on what justice requires. The court in Soczka upheld the trial court's denial of a motion to amend the complaint after verdict to conform to an agency theory. The court concluded that this was a proper exercise of discretion because the agency theory would raise a new factual issue requiring a new trial, and the plaintiff had made no claim of excusable neglect for failing to plead the agency theory before the close of evidence. Id. at 163. Because Soczka is an affirmance of a trial court's exercise of discretion, and because the relevant factors after the close of evidence are not entirely the same as after the grant of a motion for summary judgment, we do not suggest that Soczka authoritatively defines the correct legal standard in this case. However, the case does illustrate two factors— timing of motion and reason for not bringing it sooner —that the supreme court has considered appropriate when the motion is brought after a verdict.

¶ 25. Grothe, 2000 WI App 240, is the only Wisconsin case brought to our attention that involves a motion to amend a complaint after a motion for summary judgment was granted. There we held that even though there was no claim of prejudice by the defendants, the trial court properly exercised its discretion in denying the motion to amend because the plaintiff did not explain why an amendment was justified so late in the proceedings, and nearly two years after the filing. Id. at ¶ 13. Again, while this case shows that timing of the motion and the reason for not bringing it sooner are proper factors for the court to consider, it does not necessarily require the conclusion that the trial court here erroneously exercised its discretion by not considering these factors.

¶ 26. Since it appears that no Wisconsin case directly addresses the standard trial courts are to apply when considering motions under Wis. Stat. § 802.09(1) after a motion for summary judgment has been granted, we turn to federal cases applying the substantially similar federal rule. Federal courts require a stronger showing by the party seeking leave to amend after summary judgment. Freeman v. Cont'l Gin Co., 381 F.2d 459, 470 (5th Cir 1967); Illinois Conference of Teamsters and Employers Welfare Fund v. Steve Gilbert Trucking, 71 F.3d 1361, 1368 (7th Cir. 1995); Humphreys v. Roche Biomedical Lab., Inc., 990 F.2d 1078, 1082 (8th Cir. 1993), Nguyen v. United States, 792 F.2d 1500, 1503 (9th Cir. 1986); Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994). See also Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1999) (requiring a strong showing but concluding that leave to amend nevertheless should have been granted because recent legislation made the trial court's ruling on summary judgment incorrect). "It is well established that the presumption that leave to amend shall be freely given pursuant to Rule 15(a) disappears after the entry of judgment. A party seeking amendment at that stage of the proceedings must provide the district court with a good reason to grant its motion." Illinois Conference of Teamsters, 71 F.3d at 1368. Although one policy of the federal rule is to allow for liberal amendment to facilitate determination of claims on the merits, Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5th Cir. 1981), the burden shifts to the moving party

after the trial court has disposed of the case on the merits as in the case of summary judgment or judgment after a full trial. Then the concerns of finality in litigation become more compelling, and the litigant has had the benefit of a day in court, in some fashion, on the merits of his claim.

Id. at 598 n.2. As one court explained:

Much of the value of summary judgment procedure in the cases for which it is appropriate - and we have held this to be such a case - would be dissipated if a party were free to rely on one theory in an attempt to defect a motion for summary judgment and then, should that theory prove unsound, come back long thereafter and fight on the basis of some other theory.

Freeman, 381 F.2d at 470.

¶ 27. We conclude that the reasoning of these federal courts is sound. Accordingly, we hold that when a motion to amend a complaint is filed after a motion for summary judgment has been granted, there is no presumption in favor of allowing the amendment. Rather, the party seeking leave to amend must present a reason for granting the motion that is sufficient, when considered by the trial court in the sound exercise of its discretion, to overcome the value of the finality of judgment. The reasons why the party has not acted sooner, the length of time since the filing of the original complaint, the number and nature of prior amendments, and the nature of the proposed amendment are all relevant considerations, as is the effect on the defendant. However, the absence of specific prejudice to the defendant is not a sufficient reason, in itself, for allowing amendment, because that does not give appropriate weight to the value of the finality of judgment. Because the trial court did not apply the standard and consider the factors relevant to an amendment after a motion for summary judgment has been granted, we conclude it erroneously exercised its discretion.

¶ 28. We next address Channel 15's objection to the trial court's analysis of the operative facts in this case, which formed the basis for its conclusion that Channel 15 was not prejudiced. The trial court relied on Carl v. Spickler Enterprises Ltd., 165 Wis. 2d 611, 623, 478 N.W.2d 48 (Ct. App. 1991), for this formulation of prejudice: "whether the party opposing amendment has been given such notice of the operative facts which form the basis for the claim so as to enable him to prepare a defense or response." We agree with Channel 15 that when a trial court uses this formulation to determine if there is prejudice to a defendant in allowing an amendment to a complaint in a defamation action, it must take into account the specific pleading requirement applicable in such actions. See Wis. Stat. § 802.03(6). A defendant in a defamation action is entitled to notice of the specific statements or implications that are alleged to be defamatory. If "operative facts" are defined broadly as the entire broadcast or publication containing those statements or implications, then the defendant will always have had notice of that and will never be considered prejudiced by a proposed amendment. A proper analysis must focus on what specific statements or implications the proposed amendment seeks to add, and whether they raise new factual issues. For example, the factual issues involved in the alleged defamatory implication that Allison was the dog's killer are not necessarily the same as those involved in the alleged defamatory implication that Allison's training method was to beat or use violence as a means of training the dog. As we understand the trial court's decision, it did not analyze each proposed new allegation of defamatory implication to determine whether Channel 15 had had notice of the operative facts for each. This is an additional basis on which we conclude the trial court erroneously exercised its discretion in granting the motion.

¶ 29. Because we may not exercise discretion for the trial court, we must remand for the trial court to exercise its discretion employing the correct legal standard. If the trial court on remand decides to deny Allison's motion to amend its first amended complaint, that will terminate the action, since we have affirmed the court's order granting summary judgment on that complaint. However, if the court decides to grant the motion to amend, the correctness of its decision dismissing the third amended complaint remains an issue, and we therefore address it in the next section.

Second Motion for Summary Judgment

¶ 30. Allison contends the trial court erred in concluding that the broadcast did not convey the seven defamatory implications he added in the third amended complaint.

¶ 31. The court decides, as a matter of law, whether an alleged defamatory implication is fairly and reasonably conveyed by the words and pictures of the publication or broadcast. See Puhr v. Press Publ'g Co., 249 Wis. 456, 460, 25 N.W.2d 62 (1946). If the court decides it is not, the defendant is entitled to summary judgment. Id. at 461-62. If the court decides the alleged defamatory implication is fairly and reasonably conveyed but there is also a nondefamatory implication, it is the jury's role to decide which the publication or broadcast implies. See Liberty Mut. Fire Ins. v. O'Keefe & O'Flaherty, Ltd., 205 Wis. 2d 524, 527, 556 N.W.2d 133 (Ct. App. 1996). When a television broadcast is at issue, we consider both the audio and video portions and their relation to each other, see Giwosky v. Journal Co., 71 Wis. 2d 1, 6-7, 237 N.W.2d 36 (1976), as well as the juxtaposition of the various audio and video segments. See Rodney Smolla, Law of Defamation § 4:32, pp. 4-50 to 4-51 (2d ed.). In addition, extrapolating from cases that are concerned with defamation by implication in the print media, we are instructed that the "gist of the matter" is the "natural and reasonable import" of the words and images on the viewer, Woods v. Sentinel-News Co., 216 Wis. 627, 629 (1935), and we consider the broadcast as a whole, "not in detached fragments." Id. at 630.

¶ 32. Applying these standards to the first six alleged defamatory implications, we agree with the trial court that the broadcast does not fairly and reasonably convey those meanings — that Allison either intentionally or recklessly killed or seriously injured the dog without provocation or justification or without being attacked by the dog.

¶ 33. The only statements directly addressing the situation in which Allison caused injuries to the dog or his mental state at the time are the statement by the reporter, "[h]alfway into the training period, Allison says the dog attacked him," and Allison's statement "[a] dog openly attacks and you can't get him off by talking to him, do anything it takes to get him off and don't regard his safety." The only reasonable meaning of these statements is that Allison caused injuries to the dog while defending ,himself in an attack from the dog. None of the video images — Chance lying dead or injured, Chance playing with Mach's family, Mach speaking, Allison with two other dogs, Allison speaking, Mach describing Chance's injuries, another trainer being interviewed and shown speaking gently to a dog, and a member of Mach's family speaking — conveys a different implication. Finally, we do not agree with Allison that the following statement implies that there are grounds for bringing criminal charges against him because of Chance's death: "No criminal- charges have been brought against Frank Allison. The district attorney's office says there's just not enough evidence to support the charges. Allison maintains he did nothing wrong." The statement itself says there is not enough evidence, and nothing in the words or images preceding or following this statement suggests there is.

¶ 34. However, we come to a different conclusion than the trial court with respect to the seventh alleged defamatory implication that Allison's "training method was to beat or use violence as a means of training this dog." To explain our conclusion, we describe the broadcast in more detail.

¶ 35. There are two video sequences showing Allison with a dog other than Chance. In the first, Allison is shown in protective clothing with the dog's mouth around one arm; Allison is holding a stick in his other hand. Just before this video sequence is shown, thé viewer hears Mach say, "[w]e took Chance there [to Allison]. [H]e promised us we'd have a social dog"; then the voice of the reporter, "[b]ut in doing so the Mach's made one big mistake." Then Mach says, "I didn't know anything about him." During this video sequence the reporter says: "Training techniques differ from person to person and the Machs never checked Allison's style before handing Chance over." Directly following this video sequence there is another in which a man, not Allison, has a different dog on a leash and the dog is repeatedly leaping toward Allison, who, again in protective clothing, is inciting the dog to leap at him. During this sequence, we hear Allison's voice stating: "[i]n starting training especially with a problem dog I do openly recommend a 24 hour fast"; then the reporter states: "[h]alfway into the training period, Allison says the dog attacked him." This is followed by Allison's statement, which we have quoted in paragraph 33, beginning with "A dog openly attacks .. . ." Besides this statement, there is no other explanation of the circumstances of Chance's attack on Allison, and there is no explanation of the purpose of Allison's actions in the sequences with the two other dogs.

¶ 36. The trial court reasoned that no reasonable viewer could conclude that Allison used the methods shown with the two other dogs on Chance because Chance was not the dog in those pictures and the only statement regarding Allison's training style concerned the twenty-four-hour fast. We disagree with this analysis. Statements made during both the video sequences showing Allison with the two other dogs relate specifically to Chance, as does Mach's statement just before the first sequence and Allison's statement directly following the second sequence. There is no statement or visual image that directly or implicitly conveys that Allison did not use with Chance the training methods depicted in the video sequences with the other two dogs. We therefore conclude that the broadcast fairly and reasonably conveys that Allison did use with Chance the methods depicted in the video sequences with the two other dogs.

¶ 37. We also conclude that the broadcast fairly and reasonably conveys that the training method Allison is using with the two dogs — and, by reasonable implication, used with Chance — involves beating the dog or violence. A reasonable viewer could understand from the video sequences with the other two dogs that as part of his training method, Allison provokes dogs to attack him. Although neither sequence shows Allison beating the dogs, in the first he is holding a stick, which at one point he raises, reasonably suggesting that he might strike the dog. It is not clear whether Allison has the stick in order to protect himself if the dog becomes too dangerous in its attack, or whether he uses the stick to incite the dog to attack him; either, we conclude, is a reasonable implication.

¶ 38. Channel 15 argues that the defamatory implication that Allison used beating or violence in training Chance necessarily assumes that Chance never attacked him, but his own statement conveys Chance did attack him. According to Channel 15, "both cannot be true — Allison either hit the dog as a training method or he hit it to protect himself from attack." We disagree. A reasonable viewer could accept Allison's explanation that he inflicted the injuries on Chance in response to being attacked by Chance and not being able to get the dog off him, but could also conclude that Allison did use a stick to beat Chance as a training method, because that is a reasonable implication of the first video sequence with another dog. Moreover, because a reasonable viewer could understand that Allison used on Chance the methods depicted with the two other dogs, the broadcast as a whole could imply to a reasonable viewer that Allison's training method of provoking a dog was the reason Chance attacked him, causing Allison to use force against the dog in order to defend himself.

¶ 39. We acknowledge that Channel 15 presents a reasonable view of the broadcast that does not imply that Allison used beating or violence as a training method with Chance. However, we are convinced that is not the only reasonable view, and that the broadcast is fairly and reasonably capable of conveying the defamatory implication Allison has alleged. Accordingly, if the trial court on remand grants Allison leave to file the third amended complaint, he is entitled to a trial on the issue of whether the broadcast conveys the implication that he used beating or violence as a training method with Chance.

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

       Angelina Mach sued Allison for conversion based on the death of her dog and he counterclaimed for defamation. That case was consolidated with Allison's defamation action against Channel 15, its owner Benedek Broadcasting, Benedek's insurer, and Christine Leonard, who prepared the report. Mach ultimately abandoned the conversion claim, which was dismissed, and Allison was awarded a default judgment on the counterclaim, but never sought a hearing on damages. We are concerned on this appeal only with Allison's defamation action against the Channel 15 defendants.

       In opposition to the motion, Allison submitted two pages of the deposition of Dr. Steinberg, the author of the autopsy report. Channel 15, in its reply brief, objected to consideration of this deposition because it was taken without notice to Channel 15, before consolidation of the two actions. The trial court did not consider this deposition testimony in its decision. Allison does not mention Steinberg's deposition testimony in his main brief on appeal, and we therefore do not address it further.
      Allison also submitted in opposition to the motion a letter from Douglas Thamm, DVM, and Katherine James, DVM, attached to counsel's affidavit. Allison did not refer to this letter in his brief in opposition to the motion; neither did Channel 15 in reply, nor the trial court in its decision. We address this letter later in our decision.

       Allison had previously submitted one of the letters. See footnote 2.

       It appears that Allison filed the first complaint against Channel 15 in September 1998.

       After the court granted Allison's motion to amend, he filed a third amended complaint that contained allegations that were not in the proposed second amended complaint. Channel 15 moved to dismiss the third amended complaint for that reason, but the court denied the motion.

       The court in Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 525, 534 n.9, 563 N.W.2d 472, 481 (1997), noted that more recent cases of this court had, without discussion, used a standard of four elements derived from Restatement (Second) of Torts § (1997): a false and defamatory statement; an unprivileged publication to a third party; fault amounting to at least negligence on the part of the publisher; and either actionability regardless of special harm or the existence of special harm caused by the publication. See, e.g., Erdmann v. SF Broad, of Green Bay, Inc., 229 Wis. 2d 156, 164, 599 N.W.2d 1 (Wis. App. 1999). However, the court in Torgerson stated that [f]or present purposes "the distinctions between the two sets of elements, if any, are unimportant." 210 Wis. 2d n.9 at 535. The same is true in this case.

       We do not understand Channel 15 to assert that Allison is a public figure; if he were, the First Amendment would require that he prove actual malice by Channel 15 and the other defendants in addition to the other elements of the common law claim. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 535-36, 563 N.W.2d 472, 481 (1997).
      The trial court stated that Allison had to prove falsity by clear and convincing evidence, citing Torgerson, 210 Wis. 2d at 541. However, the court in Torgerson was referring to the burden of proof of actual malice. Id. at 541. Channel 15 does not argue on appeal that this standard applies to Allison's burden of proof of falsity. Therefore, we assume in our analysis the ordinary burden of proof for civil cases — by the greater weight of the credible evidence. Wis JI — Civil 200.

       Channel 15 suggests that courts are to view summary judgments differently and more favorably in a defamation case because of First Amendment concerns. However, the authorities Channel 15 cites for this proposition are cases addressing public figure defamation actions. Bay View Packing Co. v. Taff, 198 Wis. 2d 653, 672, 543 N.W2d 522 (Ct. App. 1995); Fadell v. Minneapolis Star Tribune Co., 425 F. Supp. 1075, 1085 (N.D. Ind. 1976), aff'd, 557 F.2d 107 (7th Cir. 1977), cert. denied, 434 U.S. 966. More recently, in a public figure defamation case that involved the issue of actual malice, the supreme court has examined various views on summary judgment procedure in defamation actions and concluded that
      because courts have a duty to review the record independently in public figure libel actions and this duty entails a 'constitutional responsibility that cannot be delegated to the trier of fact,1 Bose Corp. v. Consumers Union of U.S. Inc., 466 U.S. 485, 501 (1984), summary judgment is an important and favored method for adjudicating public figure defamation actions.

        Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 525, 539-40, 563 N.W.2d 472, 481 (1997). As we have explained above, our review of the grant or denial of all summary judgments is de novo. Channel 15 has not provided any authority for applying a different standard in our review of the issues presented by the appeal of the two summary judgments in this case than that which we ordinarily apply, and we have discovered none. Accordingly, save for the defamation pleading requirements we have already mentioned, see Wis. Stat. § 802.03(6), we apply the same standards for summary judgment and for review of summary judgments that we apply in other types of actions.

       When construing statutes, if the language is plain, we apply it to the facts at hand. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). Although we may not use legislative history to create an ambiguity in a statute, we may use it to reinforce a conclusion that the statute is indeed unambiguous. Novak v. Madison Motel Assoc., 188 Wis. 2d 407, 416, 525 N.W.2d 123 (Ct. App. 1994). We apply these standards in construing rules of civil procedure adopted by the supreme court.
      The first version of Wis. Stat. § 802.09(1) provided in part:
      [Amended and supplemental pleadings.] (1) Amendments. A party may amend his pleading once as a matter of course at any time prior to the entry of the scheduling order provided in s. 802.10(1). Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

        S. Ct. Order, 67 Wis. 2d 632 (eff. Jan. 1, 1976). The accompanying Judicial Council Committee Note states that this new section "generally corresponds with ss. 263.45 [allowing any pleading to be amended once as a matter of course within twenty days of service] and 269.44, except that the timing of amendments has been tied into the s. 802.10(1) scheduling order rather than the service of the original pleading as in s. 263.45." Id. at 634. "[A]t any stage of the action" was added by S. Ct. Order, 82 Wis. 2d ix (eff. July 1, 1978), with the accompanying Judicial Council Committee Note explaining "[t]he subsection... clarifies that leave of the court may be given at any stage of the action for amendment of pleadings when justice requires." S. Ct. Order, 82 Wis. 2d at xiii.

       The very nature of a discretionary decision means that in a given situation there may be more than one reasonable result. See Ocanas v. State, 70 Wis. 2d 179, 187-88, 233 N.W.2d 457 (1975) (discussing the exercise of discretion in sentencing). Therefore, an affirmance by an appellate court of a trial court's decision to deny a motion to amend a complaint does not necessarily mean that a decision to grant the motion in the same or similar circumstances is an erroneous exercise of discretion; this is particularly true where the relevant circumstances differ in any significant way.

        Grothe v. Valley Coating, Inc., 2000 WI App 240, 239 Wis. 2d 406, 620 N.W.2d 463, was decided after the trial court's decision in this case.

       Federal R. Civ. E 15(a) provides in part: "[A] party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."

       We emphasize that, depending on the facts of a particular case, it may not be necessary for a trial court to analyze prejudice to a defendant when considering a motion under Wis. Stat. § 802.09(1) brought after a motion for summary judgment has been granted. If the plaintiff does not have a sufficient reason for not seeking an amendment sooner, the trial court may properly deny the motion without considering prejudice to the defendant. However, because Channel 15 has challenged the trial court's analysis of prejudice in this case, and because we do not know if prejudice will be a relevant factor on remand, we address Channel 15's argument.

       Channel 15 did not contend in the trial court that the seven newly alleged implications were not defamatory, and in its brief on appeal Channel 15 concedes they are defamatory.

       Channel 15 appears to suggest that a stricter test is to be used by courts because of First Amendment concerns. However, the case it quotes from, Woods v. Evansville Press Co., 791 F.2d 480, 487-88 (7th Cir. 1986), is addressing the actual malice requirement in a defamation action brought by a public figure. In the absence of any authority supporting the proposition that we are to employ a stricter test because of First Amendment concerns, we employ the standard as we have articulated it in the accompanying text.
      Channel 15 is correct that, in deciding whether the broadcast conveys the alleged defamatory implications, we do not consider Allison's affidavit, described in ¶ 10, because that goes to the truth or falsity of the implications, an issue not raised by Channel 15 in its motion for summary judgment on the third amended complaint.

       There are some discrepancies between the statements as shown on the prompter's script and the actual statements oh the tape. We quote the latter.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    In re the Commitment of Shawn Virlee: State of Wisconsin, Petitioner-Respondent, v. Shawn Virlee, Respondent-Appellant.

    Court of Appeals

      No. 02-0046.

      Submitted on briefs November 25, 2002. —
    Decided December 10, 2002.

    2003 WI App 4
    (Also reported in 657 N.W.2d 106.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Diane M. Welsh, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 2-19-03.

   CANE, C.J.

¶ 1. Shawn Virlee appeals his commitment as a sexually violent person under Wis. Stat. ch. 980 and an order denying his motion for post-trial relief. Virlee argues (1) ch. 980 violates due process because it allows commitment without a separate finding of serious difficulty in controlling behavior; (2) the jury instructions misled the jury and violated his due process rights; (3) recent changes to ch. 980 violate equal protection; (4) ch. 980 violates due process and equal protection because it requires pretrial confinement without considering the least restrictive alternative; (5) the trial court lacked jurisdiction over his commitment because the court's granting of jail credit after the State filed the petition placed his release date before the petition's filing date; and (6) the trial court erroneously granted the State's motion in limine to prevent Virlee from presenting evidence regarding the jail credit.

¶ 2. We determine issues one, two, and three are governed by State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784, and State v. Williams, 2001 WI App 263, 249 Wis. 2d 1, 637 N.W.2d 791, petition for review denied, 2002 WI 23, 250 Wis. 2d 557, 643 N.W.2d 94. In addition, we decline to address Virlee's claim that Wis. Stat. ch. 980's lack of a pretrial release provision violates due process and equal protection because it does not affect his commitment. Finally, we conclude the trial court had jurisdiction over Virlee’s commitment proceedings and properly excluded the jail credit evidence. Accordingly, we affirm the trial court's judgment and order.

BACKGROUND

¶ 3. Virlee was convicted of second-degree sexual assault in 1996 and sentenced to forty-two months in prison. His scheduled mandatory release date was December 24, 1999. On December 20, the State filed a petition to commit Virlee as a sexually violent person. Virlee filed a motion to dismiss the petition, arguing he was owed jail credit that would have made his mandatory release date November 14. Because the State filed its petition after this date, Virlee argued, the trial court lacked jurisdiction over the commitment proceedings. Virlee also argued his pretrial confinement violated the requirements of Foucha v. Louisiana, 504 U.S. 71 (1992), and that the legislature's removal of Wis. Stat. ch. 980's "least restrictive placement" requirement also violated due process.

¶ 4. The court denied Virlee's motion. It concluded Virlee had not properly raised the jail credit issue and therefore refused to consider it. In terms of the pretrial confinement and least restrictive issues, the court determined it was bound by case law concluding Wis. Stat. ch. 980 was constitutional.

¶ 5. Virlee then filed a motion asking the court to grant the jail credit. Specifically, Virlee claimed he was owed the credit for time he spent in jail between his arrest and the sentencing for the sexual assault. The court awarded the credit, and Virlee renewed his motion to dismiss. The court again denied the motion, concluding its retroactive grant of jail credit did not affect Virlee's actual release from prison on December 24 and the State's filing of the petition based on that date.

¶ 6. Prior to trial, the State filed a motion in limine to prevent Virlee from presenting evidence of the trial court's grant of jail credit and the subsequent change in his mandatory release date. The court granted this motion, concluding the evidence was irrelevant and its introduction would confuse the jury. Virlee also requested a modification of the pattern jury instruction, Wis JI — Criminal 2502, to include a requirement that the jury find he had serious difficulty in controlling his behavior. The court denied this request.

¶ 7. The jury found Virlee to be a sexually violent person and the court ordered his commitment. Virlee brought post-trial motions, which the court denied and he now appeals.

DISCUSSION

A. Due Process

¶ 8. We first address Virlee's claim that Wis. Stat. ch. 980 violates due process because it does not require a separate finding that the person being committed has serious difficulty in controlling his or her behavior. He argues this finding is required by the United States Supreme Court's decision in Kansas v. Crane, 534 U.S. 407 (2002), where the Court considered Kansas' sexually violent persons commitment statute. In Crane, the Court concluded due process requires a finding that persons being committed have a serious inability to control their behavior. Id. at 412-13.

¶ 9. Our supreme court's decision in Laxton controls our resolution of this issue. In Laxton, the court determined Wis. Stat. ch. 980 satisfied the due process requirements of Crane. Laxton, 2002 WI 82 at ¶¶ 22-23. The court ruled ch. 980's requirement of proving a nexus between the mental disorder and an individual's dangerousness implicitly involves proof that the person has serious difficulty controlling his or her behavior. Id. The court specifically determined ch. 980 does not require a separate finding of the person's inability to control his or her behavior to comply with due process. Id. at ¶ 2. Consequently, we reject Virlee's claim.

B. Jury Instruction

¶ 10. We also determine Laxton controls Virlee's claim that the pattern jury instruction regarding the commitment of sexually violent persons, Wis JI— Criminal 2502, misstated the law and violated his due process rights. Virlee argues this instruction did not properly reflect the Supreme Court's decision in Crane. Our supreme court, however, rejected the same argument in Laxton, concluding because the jury instruction accurately tracked the statute and because the statute complied with due process, the jury instruction was proper. Id. at ¶ 27.

C. Equal Protection

¶ 11. Virlee next argues the legislature's changes to Wis. Stat. ch. 980 in 1999 by Wis. Act 9 violate his right to equal protection. Among these changes is a requirement that persons committed under ch. 980 be institutionalized and does not allow them to petition for release for at least eighteen months. Virlee claims this violates his right to equal protection because persons committed under other procedures, such as Wis. Stat. ch. 51, are not subject to the same restrictions.

¶ 12. Virlee acknowledges we rejected these arguments in Williams. At the time he filed his brief, however, the supreme court was considering a petition for review in Williams. The supreme court has since denied the petition. Consequently, we reject Virlee's equal protection argument.

D. Pretrial confinement

¶ 13. Next, Virlee argues Wis. Stat. ch. 980 violates due process and equal protection because it does not allow for the pretrial release of respondents. He contends the statute violates equal protection because ch. 980 respondents are similarly situated to criminal defendants and there is no basis for denying bail to the former while granting it to the latter. Virlee also' argues the statute violates due process because it does not comply with the requirements of Foucha, where the Supreme Court considered due process as it relates to the confinement of persons with mental disorders. Finally, he argues ch. 980 violates due process because ch. 980 no longer requires the court to consider the "least restrictive placement" for ch. 980 respondents.

¶ 14. We decline to address Virlee's due process and equal protection arguments because he fails to establish, and we do not see, how the statute's lack of a provision for pretrial release affects the trial court's judgment. Virlee's appeal challenges his commitment. He does not argue that his inability to be released pending his trial somehow rendered the jury's verdict or the court's order of commitment improper. Even if we were to conclude Virlee had a right to be released before trial, the error would be harmless because it has no bearing on whether he is sexually violent. See Whitty v. State, 34 Wis. 2d 278, 289, 149 N.W.2d 557 (1967) (violation of right to reasonable bail subject to harmless error test because it does not affect issue of defendant's guilt or innocence). Further, although it is unclear whether Virlee challenges the removal of the least restrictive placement language from ch. 980 in the context of pretrial release or post-trial commitment, our supreme court has already determined the legislature's removal of this provision does not violate due process. See State v. Rachel, 2002 WI 81, ¶ 66, 254 Wis. 2d 215, 647 N.W.2d 762.

E. Jurisdiction

¶ 15. Next, we address Virlee's claim that the trial court did not have jurisdiction over his commitment proceedings. Virlee argues his mandatory release date was changed when the court awarded him jail credit and because this new date was prior to the State's filing of the commitment petition, the court was no longer competent to proceed. We disagree.

¶ 16. Wisconsin Stat. § 980.02(2)(ag) requires that ch. 980 petitions be filed within ninety days of the respondent's "discharge or release, on parole, extended supervision or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense, from a secured correctional facility. . . ." State v. Pharm, 2000 WI App 167, ¶ 10, 238 Wis. 2d 97, 617 N.W.2d 163. Failure to comply with this time limit affects the court's competency to proceed. Id. at ¶ 11. A court's competency to proceed is a question of law we review de novo. Id. To resolve this issue, we must interpret § 980.02(2) (ag), which also is a question of law we review de novo. Id. When we interpret a statute, our primary purpose is to discern the legislature's intent. Landis v. Physicians Ins. Co., 2001 WI 86, ¶ 14, 245 Wis. 2d 1, 628 N.W.2d 893. To determine this intent, we look first to the plain language of the statute. Id. If the statutory language is clear and unambiguous, we do not look beyond the statutory language to ascertain its meaning. Id.

¶ 17. Virlee claims the court lost its competency to proceed with his commitment proceeding when it retroactively granted him sentence credit that placed his mandatory release date prior to the petition's filing date. We disagree. Under Wis. Stat. § 980.02(2)(ag), the State must file its petition within ninety days of release or discharge for it to be timely. By filing four days before Virlee's scheduled release from prison, the State did just that. The court did not lose jurisdiction because it modified Virlee's sentence after the petition was filed.

¶ 18. Our conclusion is supported by State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995). In Carpenter, Carpenter was paroled in 1993, but was later reincarcerated when the department of corrections recalculated his sentence based on our decision in State ex rel. Parker v. Fiedler, 180 Wis. 2d 438, 509 N.W.2d 440 (Ct. App. 1993), rev'd, State ex rel. Parker v. Sullivan, 184 Wis. 2d 668, 517 N.W.2d 449 (1994). The supreme court later reversed this decision, and mandated all prisoners detained according to our decision be released on July 15, 1994. Carpenter, 197 Wis. 2d at 260. Instead of releasing Carpenter, however, the State filed a Wis. Stat. ch. 980 petition on July 14, 1995. Id. Carpenter argued the court lost jurisdiction because the petition should have been filed within ninety days of his 1993 parole date. Id. at 275. The supreme court rejected this argument, saying the department of correction's recalculation of Carpenter's parole based on Parker was not "illegal" merely because Parker was later reversed. Id. Instead, the court noted the State's petition was filed within ninety days of Carpenter's actual discharge from prison. Id. Similarly, we conclude the trial court's subsequent modification of Virlee's sentence does not change the fact the State filed the petition within ninety days of his actual release from prison.

F. Evidence of sentence credit

¶ 19. Finally, we conclude the trial court did not err when it granted the State's motion precluding Virlee from introducing evidence of the trial court's sentence credit decision. A decision admitting or excluding evidence is subject to review under the erroneous exercise of discretion standard. See State v. Plymesser, 172 Wis. 2d 583, 591, 493 N.W.2d 367 (1992). We will affirm an evidentiary ruling if it is reasonable. Id. The court determined the evidence was irrelevant and could mislead the jury. This is a reasonable ruling considering the court correctly concluded its award of jail credit did not affect its jurisdiction over Virlee's Wis. Stat. ch. 980 proceeding. Any discussion of the court's modification would have been irrelevant to whether the State filed its petition within ninety days of Virlee's release and would have confused the jury on this issue.

By the Court. — Judgment and order affirmed.

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


text:
    State of Wisconsin, Plaintiff-Respondent, v. Richard G.B., Defendant-Appellant.

    Court of Appeals

      No. 02-1302-CR.

      Submitted on briefs October 11, 2002.—

      Decided December 12, 2002.

    2003 WI App 13
    (Also reported in 656 N.W.2d 469.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Bridget E. Boyle of Boyle, Boyle & Smith, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Dykman and Deininger, JJ.

       Petition to review denied 2-19-03.

       See Callaghan’s Wisconsin Digest, same topic and section number.

   VERGERONT, EJ.

¶ 1. Richard G.B. appeals a judgment of conviction for two counts of sexual assaults of a child contrary to Wis. Stat. § 948.02(2) (1999-2000), and a postconviction order denying his request for a new trial and resentencing. Richard contends the trial court incorrectly interpreted Wis. Stat. § 905.05(3)(b), an exception to the husband-wife privilege, and allowed his wife to testify against him in spite of his invocation of the privilege. We conclude the exception for a proceeding in which one spouse is charged with a crime against a third person "committed in the course of committing a crime against the other," § 905.05(3)(b), applies in this case. Therefore, the trial court properly allowed Richard's wife's testimony. Richard also argues that the trial court misused its discretion in sentencing him to eighteen years in prison on one of the convictions. We conclude the trial court properly exercised its discretion in sentencing Richard. Accordingly, we affirm.

BACKGROUND

¶ 2. The sexual assault charges against Richard involved his niece, Melissa N., who was fifteen years old at the time. Melissa testified at trial as follows. On a Saturday night in December 1999, she was baby-sitting for Richard's children at his home. After Richard and his wife came home, his wife went to bed and Richard engaged Melissa in acts of mouth-to-vagina and penis-to-vagina intercourse.

¶ 3. A couple months after this incident, Melissa was to baby-sit Richard's children at his home again. Richard picked up Melissa, and while driving back to his home, Richard told her to look under the seat because he had bought her something from a store called "Naughty But Nice." Melissa pulled out a package from underneath the seat and found a vibrator inside. He explained to her how the vibrator worked and demonstrated by turning it on while he was driving. At that point, she decided not to spend the night at Richard's house. She called her grandmother when she "arrived at Richard's house and said she needed to get out of there. Her grandmother picked her up, and Melissa told her grandmother and aunt about the vibrator and the prior sexual incident with Richard.

¶ 4. The State brought a motion in limine prior to trial regarding the admissibility of the testimony of Richard's wife, Tracy. One of the statements at issue concerned Tracy's conversation with Richard concerning the vibrator. According to Tracy, Richard admitted to her that he bought the vibrator, but he told her that he bought it for her. He also told her that the vibrator slid out from beneath the seat of his car when he had to stop instantly, and Melissa found it.

¶ 5. Richard objected to the admission of this testimony, asserting the husband-wife privilege under Wis. Stat. § 905.05(1), which provides:

(1) General rule of privilege. A person has a privilege to prevent the person's spouse or former spouse from testifying against the person as to any private communication by one to the other made during their marriage.

The trial court ruled that the privilege did not apply because of the exception in § 905.05(3)(b) which provides:

(3) Exceptions. There is no privilege under this rule:
(b) In proceedings in which one spouse or former spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a 3rd person committed in the course of committing a crime against the other.

The trial court reasoned that Richard's having sexual relations with someone other than his wife — Melissa— constituted the crime of adultery, which was a crime against his wife.

¶ 6. The jury found Richard guilty of two counts of second-degree sexual assault. The court sentenced Richard to an indeterminate prison term not exceeding eighteen years on the conviction for mouth-to-vagina intercourse. On the conviction for penis-to-vagina intercourse, the court imposed and stayed a consecutive eighteen-year prison term and placed Richard on probation for twenty years. The trial court denied Richard's postconviction motion for a new trial or resentencing.

DISCUSSION

Spousal Privilege Exception, Wis. Stat. § 905.05(3)(b)

¶ 7. Richard asserts that the trial court incorrectly interpreted the exception to the spousal privilege in Wis. Stat. § 905.05(3)(b) to allow his wife to testify regarding his purchase of a vibrator, in spite of his invocation of the spousal privilege. Although the decision whether to admit or exclude evidence generally lies within the sound discretion of the circuit court, if an evidentiary issue requires construction or application of a statute to a set of facts, a question of law is presented, and our review is de novo. State v. Jagielski, 161 Wis. 2d 67, 467 N.W.2d 196 (Ct. App.1991).

¶ 8. When we construe a statute, our aim is to ascertain the intent of the legislature, and to that end we first consider the statutory language. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68, 74 (1992). If that language is clear and unambiguous, our inquiry ends; and we simply apply the language to the facts of the case. Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 201, 496 N.W.2d 57 (1993). However, if the language is ambiguous, we determine legislative intent from the words of the statute in relation to its context, subject matter, scope, history, and the object the legislature intended to accomplish. Truttschel v. Martin, 208 Wis. 2d 361, 365, 560 N.W.2d 315, 317 (Ct. App. 1997). A statute is ambiguous if it has more than one reasonable interpretation when applied to the facts of a particular case; the question whether a statute is ambiguous is a question of law, subject to our de novo review. In re Commitment of Gibbs, 2001 WI App 83, ¶ 4, 242 Wis. 2d 640, 625 N.W.2d 666.

¶ 9. The State concedes that Richard's alleged statement to his wife that he bought the vibrator qualifies as a private communication. Therefore, under Wis. Stat. § 905.05(1), Richard can prevent his wife from testifying at trial about his statement, unless one of the statutory exceptions to the spousal privilege applies. The exception at issue in this case is para. (3)(b).

¶ 10. We begin with the language of Wis. Stat. § 905.05(3)(b). It provides three different situations in which a spouse may testify against the other spouse despite the invocation of the spousal privilege. They are: (1) in a proceeding in which a spouse or former spouse is charged with a crime against the person or property of the other [spouse]; (2) in a proceeding in which a spouse or former spouse is charged with a crime against the person or property "of a child of either" spouse; or (3) in a proceeding in which a spouse or former spouse is charged with a crime against the person or the property of a third person "committed in the course of committing a crime against the other [spouse]."

¶ 11. Richard argues that the exception to the spousal privilege in Wis. Stat. § 905.05(3)(b) does not apply because Richard is not charged with a crime against Tracy. However, we conclude that the plain language does not require that he be charged with a crime against his wife if either the second or third situation is applicable. It is the third situation we focus on, which we will call the "third-party exception."

¶ 12. With respect to the third-party exception, it appears Richard is arguing that because his acts that constitute a crime against the third person, Melissa, are the same acts that constitute adultery, the crimes against Melissa were not committed "in the course of committing adultery. We are uncertain whether his contention is that this phrase is plain or ambiguous. However, we agree with the State's position that this phrase is ambiguous when applied to the facts of this case, and we therefore consider the purposes of the privilege and of this exception as an aid in construing this language.

¶ 13. The spousal privilege prohibiting one spouse from testifying against the other is based on the public policy of encouraging marital confidence between husband and wife and thereby preserving the marital relationship. Abraham v. State, 47 Wis. 2d 44, 53, 176 N.W.2d 349 (1970). Since this privilege, like other types of privileges, results in the exclusion of relevant evidence, the general approach is to apply them " 'only to the very limited extent that permitting a refusal to testify . . . has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.' [Citation omitted.]" Trammel v. United States, 445 U.S. 40, 50 (1980).

¶ 14. The exceptions in Wis. Stat. § 905.05(3)(b) identify situations in which a spouse, who would otherwise be entitled to invoke the privilege, has transgressed either against his or her spouse (the first and third situations), or against a child of either spouse (the second situation). In these situations, the legislature has determined that preventing a spouse from testifying against the accused spouse does not serve a public good that is more important than ascertaining the truth. In particular, with respect to the first and third situations, if one spouse has committed a crime against the other, the trust fundamental to a marriage has been severely damaged; the legislature has therefore concluded that sufficient justification for the privilege no longer exists. See § 905.05(3)(b).

¶ 15. In light of the purpose of both the privilege and exceptions in Wis. Stat. § 905.05(3)(b), we conclude it is irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse or different acts. It is also irrelevant whether a crime against the spouse is the "primary crime" rather than incidental to, or a necessary by-product of, a crime against the third party. The purpose of the third-party exception in para. (3) (b) is best carried out if committing a crime against a third party "in the course of' committing a crime against one's spouse is interpreted to encompass conduct that is both itself a crime against a third party and a crime against one's spouse. We therefore conclude that Richard committed sexual assaults against Melissa "in the course of' committing a crime against Tracy within the meaning of § 905.05(3)(b).

¶ 16. Richard may also be contending that adultery is not "a crime against" his wife. However, he apparently concedes that adultery is defined as a crime by Wis. Stat. § 944.16(1), which provides:

Adultery. Whoever does either of the following is guilty of a Class E felony:
(1) A married person who has sexual intercourse with a person not the married person's spouse ....

It may be that adultery is no longer prosecuted as a crime, and that many people no longer view adultery as deserving of criminal punishment. But adultery is nevertheless defined as a crime under the statutes of this State, and therefore it plainly is a "crime" within the meaning of Wis. Stat. § 905.05(3)(b). We also see no ambiguity concerning whether adultery is a crime "against" Richard's wife. Certainly she is injured, although not physically, by her husband having sexual relations with a person other than herself. Even if we assume, for purposes of argument, that there is an ambiguity on this point, we conclude that construing a "crime against the other [spouse]" to include adultery is more consistent with the purposes of the privilege and exceptions in para. (3)(b). When a married person commits the crime of sexual assault against a third person, that married person has transgressed against his or her spouse as well as the third person, and the justification for preventing one spouse from testifying against the other no longer outweighs the interests of ascertaining the truth.

¶ 17. Accordingly, we conclude that under Wis. Stat. § 905.05(3)(b) Tracy's testimony is admissible despite Richard's invocation of the spousal privilege because he was charged with crimes of sexual assault against a third party, Melissa, committed "in the course of1 committing the crime of adultery "against the other [spouse]," Tracy.

Richard's Sentence

¶ 18. Richard argues that his sentence of eighteen years for his conviction for mouth-to-vagina intercourse was "too harsh" for someone with a family, stable work history, and no prior criminal history. He does not challenge the sentence for the other conviction.

¶ 19. Our review of Richard's sentence is limited to determining whether the trial court erroneously exercised its discretion. See Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). In imposing a sentence, the three primary factors the court is to consider are the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. McCleary v. State, 49 Wis. 2d 263, 276, 182 N.W.2d 512 (1971). There is a strong public policy against interference with the sentencing discretion of the trial court, and we presume that the trial court acted reasonably. See State v. Spears, 227 Wis. 2d 495, 506, 596 N.W.2d 375 (1999). Because of this policy, the defendant has the burden to show some unreasonable or unjustifiable basis in the record for the sentence at issue. State v. Lechner, 217 Wis. 2d 392, 418, 576 N.W.2d 912 (1998).

¶ 20. .We observe first that the maximum prison term for second-degree sexual assault of a child under Wis. Stat. § 948.02(2) at the relevant time he was convicted was twenty years. See Wis. Stat. § 939.50(3)(bc) (1997-1998). Generally, sentences within the limits of the maximum sentence are not disproportionate to the offense committed and are not unduly harsh or unconscionable. State v. Daniels, 117 Wis. 2d 9, 22, 343 N.W.2d 411 (Ct. App. 1983).

¶ 21. The trial court here considered the primary sentencing factors in imposing the eighteen-year prison term. The court took into account the gravity and nature of the offense, noting that the offense was punishable by up to twenty years in prison, which reflected the seriousness of the crime. The court also considered Richard's character and rehabilitative needs. While recognizing that Richard was a "hard worker" and had "a strong family support," it stated "there are offenses that so overshadow good character . . . the primary focus shifts to the . .. gravity of what occurred." Finally, the court observed that there was a need to protect the public "from having people like [Richard] .. . taking advantage of their children." We are satisfied that the trial court clearly articulated its reasoning for the sentence and considered the appropriate factors. We therefore conclude that the trial court did not erroneously exercise its discretion.

By the Court. — Judgment and order affirmed.

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

       It appears that Richard interprets the trial court's ruling on his postconviction motion to suggest that there is an exception because Melissa was a child relative visiting Richard's home. We do not understand the trial court's ruling in this way. But, even if the court did so rule, our review is de novo, and we may affirm a trial court's conclusion as correct even if we do so on different grounds. See Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995).

       Richard asserts that in order to conclude that he committed adultery, we have to assume he was guilty of the allegations in the criminal complaint and this is not the intent of the legislature. If Richard intends this as an additional argument, he does not develop it sufficiently for us to address it.

       Richard and the State debate the relevance of People v. Sinohui, 28 Cal. 4th 205, 47 P.3d 629, 120 Cal. Rptr. 2d 783(2002), in which the court construed the same phrase "in the course of committing a crime ... against the person ... of the other spouse" in a different factual context. In Sinohui, the defendant was charged with kidnapping and murdering his wife's former boyfriend; at the same time, he committed acts that constituted false imprisonment of his wife. Id. at 632. The court rejected the defendant's argument that the phrase meant that the crime against the spouse was not incidental to the crime against the third person, that the spouse had to be the primary victim. Id. at 635. Instead, the court concluded that the defendant committed the crimes of kidnapping and murder against his wife's former boyfriend "in the course of' committing the crime of false imprisonment against his wife, because both crimes were part of a continuous course of criminal conduct and bore some logical relationship to each other. Id. at 639. Sinohui is consistent with our conclusion that the crime against the spouse need not be the "primary crime," but may be incidental to the crime against a third person. However, we agree with Richard that the Sinohui court's analysis of the specific relationship between the crime against the third party and the crime against the spouse in that case is not particularly helpful in analyzing the relationship between the sexual assaults of Melissa and adultery against Tracy.


text:
    National Auto Truckstops, Inc., Plaintiff-Appellant, v. State of Wisconsin, Department of Transportation, Defendant-Respondent.
    Court of Appeals

      No. 02-1384.

      Submitted on briefs December 3, 2002. —
    Decided December 17, 2002.

    2003 WI App 14
    (Also reported in 656 N.W.2d 798.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Diane P. Gerth and Bradley J. Gunn of Leonard, Street & Deinard (Pro Hac Vice) of Minneapolis, MN.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Pamela Magee, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 2-19-03.

   CANE, C.J.

¶ 1. National Auto Truckstops, Inc., appeals a judgment entered on a jury verdict awarding it $275,000 in compensation for property condemned by the Department of Transportation and an order denying its motion for a new trial. National Auto argues the trial court erred when it (1) excluded evidence relating to damages National Auto experienced as a result of its loss of access to the adjoining road; and (2) barred National Auto from presenting evidence using the income approach to value the property. We conclude the trial court properly excluded the evidence relating to both of these issues and therefore affirm the judgment and order.

BACKGROUND

¶ 2. National Auto owns a truckstop at the intersection of U.S. Highway 12 and Interstate 94 near Hudson. National Auto rents the truckstop to Twin City East, which operates and manages the facility. In 1996, the DOT acquired .27 acres of the truckstop's frontage along Highway 12 as part of a planned reconstruction of the intersection. In addition, the DOT acquired a temporary easement for use during the construction. The DOT did not purport to take National Auto's access rights to Highway 12.

¶ 3. Prior to reconstruction, the truckstop had two direct access points on Highway 12, one intended for trucks and the other for automobiles. As part of the reconstruction, the DOT widened Highway 12 to four lanes and constructed a frontage road on the condemned property. After the reconstruction, all vehicles had to enter the truckstop via the frontage road, which could only be accessed by an intersection north of the property. The frontage road retained the separate entrances for trucks and automobiles. The section of Highway 12 located near the truckstop was at no time a controlled-access highway.

¶ 4. National Auto appealed to the circuit court. It retained two appraisers who evaluated the condemnation damages at approximately $1 million. The State brought a motion to exclude the appraisals in part because they (1) considered damages for the truckstop's change in access; and (2) were partly based on the income approach to valuation. The court granted this motion and the appraisers revised their valuations to reflect the court's order. The new appraisals valued the taken property at $350,000 and $12,550 using the comparable sales approach and the cost approach, which along with the income approach are the three methods appraisers use to value property.

¶ 5. At trial, the court prevented National Auto from introducing any evidence of the income approach to valuation and damages related to the change of access. In addition, the court instructed the jury not to consider damages resulting from the change in access and denied National Auto's proposed instruction on the income approach. The jury awarded National Auto $275,000. Both parties brought motions for a new trial, which the court denied. National Auto appeals.

DISCUSSION

A. Access

¶ 6. National Auto first argues the trial court erred when it excluded evidence relating to National Auto's damages suffered by the change in access. We review a circuit court's decision to exclude evidence under an erroneous exercise of discretion standard. State v. Brewer, 195 Wis. 2d 295, 309, 536 N.W.2d 406 (Ct. App. 1995). Therefore, we will affirm the decision if the court examined the relevant facts, applied a proper standard of law, and reached a reasonable conclusion using a demonstrated rational process. Magyar v. Wisconsin Health Care Liab. Ins. Plan, 211 Wis. 2d 296, 302, 564 N.W.2d 766 (1997), aff'd, 242 Wis. 2d 491, 625 N.W.2d 291 (2001).

¶ 7. National Auto argues the court erred by not admitting the evidence because it had a legal right to recover those damages. Essentially, National Auto claims it has a right of access to Highway 12, the DOT'S project deprived it of that right, and it is allowed to recover for that deprivation under Wis. Stat. § 32.09(6)(b). National Auto admits this statute allows the State to restrict or deny access without compensation if it is done pursuant to a valid exercise of police power. However, National Auto argues the only valid exercise of the police power in this circumstance would he if the State had declared Highway 12 a controlled-access highway pursuant to Wis. Stat. § 84.25, which does not give landowners a right of access to these highways. Wis. Stat. § 84.25(6).

¶ 8. National Auto, however, misunderstands its right of access. The "existing right of access" under Wis. Stat. § 32.09(6)(b) includes the right of an abutting property owner to ingress and egress. Narloch v. DOT, 115 Wis. 2d 419, 432, 340 N.W.2d 542 (1983). The property owner's right is to access, not to existing access points. Id. at 430. If this right is taken, then the State is required to compensate the property owner unless the condemnation involves access to a controlled-access highway. Schneider v. State, 51 Wis. 2d 458, 462-63,187 N.W.2d 172 (1971). Deprivation of direct access to a highway does not constitute a taking of property provided reasonable access remains. Id.

¶ 9. Here, the State has not taken National Auto's right of access because it has not completely removed its right of ingress and egress to Highway 12. National Auto still has access to Highway 12 through the frontage road. A frontage road provides reasonable access to and from a landowner's property. See id. Nor is any diminution of value in land compensable because the State made access to the highway more circuitous. Nick v. State Hwy. Comm'n, 13 Wis. 2d 511, 518, 109 N.W.2d 71 (1961). Because the State did not take National Auto's right of access, the trial court properly excluded evidence relating to National Auto's claim for damages.

B. Income method valuation

¶ 10. National Auto also argues the court erroneously excluded evidence valuing the property using the income method. We disagree. Wisconsin law provides that income evidence is never admissible where there is evidence of comparable sales. Leathern Smith Lodge, Inc. v. State, 94 Wis. 2d 406, 413, 288 N.W.2d 808 (1980).. National Auto does not dispute evidence of comparable sales was available in this case.

¶ 11. Nonetheless, National Auto contends the trial court should have admitted the income evidence. It points to the Leathern decision, where the supreme court discussed the exceptions to the inadmissibility of income valuations and our more recent reaffirmation of these exceptions in Rademann v. DOT, 2002 WI App 59, 252 Wis. 2d 191, 642 N.W.2d 600. National Auto contends its property meets the requirements of one of these exceptions, specifically that the truckstop is not owner-managed and that the property's profits are produced without National Auto's labor and skill. It contends the only income it receives from the property is the rent it collects from Twin City East. National Auto claims because this is not speculative, like business profits, the court should have admitted it.

¶ 12. Further, National Auto argues Wisconsin case law regarding the admission of income approach valuation is confusing, inconsistent and outdated in light of modern appraisal practices. While we agree that the case law is somewhat confusing and inconsistent in this area, we decline to reverse the trial court because we cannot say it erroneously exercised its discretion by excluding the income evidence.

¶ 13. In Leathern, the supreme court noted income evidence is ordinarily inadmissible to establish property values because business income depends on too many variables, such as the owner's skill and talent, to be reliable as a guide to the fair market value. Leathern, 94 Wis. 2d at 413. The court also noted three exceptions to this rule: (1) when the character of the property is such that profits are produced without the labor and skill of the owner; (2) when profits reflect the property's chief source of value; and (3) when the property is so unique that comparable sales are unavailable. Id. The court then went on to hold that income evidence is never admissible when evidence of comparable sales is available. Id.

¶ 14. Our supreme court revisited this issue in Vivid, Inc. v Fiedler, 219 Wis. 2d 764, 580 N.W.2d 644 (1998), which involved compensation for the taking of billboards. There, the court stated the three exceptions listed in Leathern were exceptions to the rule that income evidence is never admissible where there is evidence of comparable sales, not to the general inadmissibility of income evidence. See Vivid, 219 Wis. 2d at 792. The owner of the billboards in Vivid submitted evidence valuing the signs under the comparable sales approach using a General Income Multiplier (GIM) as well as income valuation. Id. at 773, 791.

¶ 15. The court issued two opinions in Vivid, a three-justice lead opinion and a four-justice concurrence that is actually the court's opinion. Id. at 797 n.l. The concurring justices took issue with what they believed was the other opinion's "carte blanche" approval of the GIM valuation, arguing the GIM could improperly consider impermissible factors such as business profits in its calculation. Id. at 804. The concurrence held trial courts should review GIM valuations prior to their admission to ensure they did not contain any such speculative considerations. Id. In addition, the three-justice opinion approved of the trial court's admission of separate income approach evaluation because it fit under at least one of the exceptions. Id. at 792. The concurring justices did not challenge this decision, although their discomfort with the GIM valuation was, in part, because it considered business profits, one of the reasons income evidence is generally excluded. See id. at 804.

¶ 16. Finally, in Rademann, we rejected a claim that Vivid modified Leathern to allow the admission of income evidence if it met one of the exceptions. Rade-mann, 2002 WI App 59 at ¶ 31. Specifically, we said the Vivid decision only applied to compensation for billboards, not other property. Id. We upheld the trial court's exclusion of income evidence used to value a quarry, saying "in light of the availability of comparable sales, undex Leathern . . . the trial court acted within its discretion." Rademann, 2002 WI App 59 at ¶ 32.

¶ 17. We agree the status of the admissibility of income evidence is confusing in light of Leathern's statement that income evidence is never admissible if proof of comparable sales is available, and Vivid's statement that the exceptions apply to this rule, rather than the income evidence's general inadmissibility regardless of the availability of comparable sales. Nonetheless, Leathern, Vivid, and Rademann all stand for the proposition that income evidence is generally disfavored as a method of measuring property values and that it is within the trial court's discretion to admit or exclude this evidence. We conclude here, as we did in Rademann, that the trial court did not erroneously exercise its discretion when it excluded the income evidence given the availability of comparable sales evidence under Leathern.

¶ 18. Finally, National Auto argues income evidence should be admissible because it reflects the modern trend in business appraisal. While this may very well be the case, our review is limited to whether the trial court exercised its discretion. In light of the availability of comparable sales and the disfavored status of income evidence in our state, we are satisfied the trial court properly used its discretion in excluding the evidence.

By the Court. — Judgment and order affirmed.

      In their brief, National Auto explains the $12,550 appraisal was only to be used as the basis for an appeal in the event the other appraisal was still excluded. At trial, National Auto only introduced the $350,000 appraisal, while the State offered the $12,550 valuation.

       WISCONSIN Stat. § 32.09(6) provides:
      Rules governing determination of just compensation. .. .
      (6) In the case of a partial taking of property other than an easement, the compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken as of the date of evaluation or the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the following items of loss or damage to the property where shown to exist:
      (b) Deprivation or restriction of existing right of access to highway from abutting land, provided that nothing herein shall operate to restrict the power of the state or any of its subdivisions or any municipality to deprive or restrict such access without compensation under any duly authorized exercise of the police power.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 84.25 provides:
      Controlled-access highways. . . .
      (6) Abutting owners. After the designation of a controlled-access highway, the owners or occupants of abutting lands shall have no right or easement of access, by reason of the fact that their property abuts on the controlled-access highway or for other reason, except only the controlled right of access and of light, air or view.

       Dissenting in part and concurring in part, Judge Brown disagreed with the majority's treatment of Vivid and Leathern.
        He said he did not read Vivid to allow income evidence to be admitted in the valuation of billboards, pointing to the concurrence's discomfort with the income-related aspects of the GIM valuation. Rademann v. DOT, 2002 WI App 59, ¶ 61, 252 Wis. 2d 191, 642 N.W.2d 600.