author: BROWN, J. ANDERSON, J.

text:
    Steven Pertzsch and Doris Pertzsch, Plaintiffs-Respondents, v. Upper Oconomowoc Lake Association, Thomas L. Wavernek, Damian O. Fennig, Donald Fellows and Kenneth E. Millard, Defendants-Appellants.
    Court of Appeals

      No. 00-2514.

      Oral argument July 24, 2001.

    Decided September 19, 2001.

    2001 WI App 232
    (Also reported in 635 N.W.2d 829.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of and oral argument by Curtis A. Paulsen of Whyte Hirschboeck Dudek, S.C. of Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Kathryn Sawyer Guten-kunst and Daniel J. Habeck of Cramer; Multhauf & Hammes, LLP of Waukesha. There was oral argument by Kathryn Sawyer Gutenkunst.

    Before Nettesheim, PJ., Brown and Amderson, JJ.
   BROWN, J.

¶ 1. The Upper Oconomowoc Lake Association appeals from an order reversing the decision of the Association's Architectural Control Committee to deny the request of Steven and Doris Pertzsch to build a lakeside boathouse. The court reasoned that the Committee's reliance on the fact that no other lakeside boathouse existed rendered its decision arbitrary and capricious in light of the express terms of the restrictive covenant allowing boathouses. We affirm.

¶ 2. Ón June 1, 1999, the Pertzsches purchased property on Upper Oconomowoc Lake. As required in the controlling covenants, the Pertzsches provided the Committee with the plans and specifications for the construction of a home and a detached, lakeside boathouse and requested the necessary consent for the construction of both buildings. The Committee approved the Pertzsches' house plan but denied their request for a lakeside boathouse.

¶ 3. The covenants controlling the Committee's decision are contained in an agreement executed in 1961. The agreement provided for the creation of the Committee and granted it certain powers, duties and responsibilities relating to the construction of buildings and other structures. These powers and duties stem from the specific requirement that all construction plans and specifications be approved by the Committee. The paragraphs relevant to this dispute state in part:

• (1) LAND USE AND BUILDING TYPE: No lot shall be used, except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single family dwelling not to exceed two stories in height and a private garage for not more than three cars, except that a boat house may be permitted with consent of the Architectural Control Committee.
(2) ARCHITECTURAL CONTROL: No building shall be erected, placed, or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the Architectural Control Committee as to quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topograph and finish grade elevation and setback, front, back and side. No fence or wall shall be erected, placed or altered on any lot nearer to any street than the minimum building setback line unless similarly approved.
(5) DWELLING LOCATION: No dwelling shah be located on any lot nearer to the front lot line or nearer to the side street line or nearer to the lakeshore, than the minimum building setback lines shown on the recorded plat and in any event, no dwelling shall be located on any lot nearer than fifty (50) feet to the lakeshore or nearer than fifty (50) feet to the front lot line, or nearer than thirty-five (35) feet to any side street line. No building shall be located nearer than ten (10) feet to an interior lot line. No dwelling shall be located on any interior lot nearer than thirty-five (35) feet to the rear lot line. For the purpose of this covenant, eaves, steps, and open porches shall not be considered as part of a building, provided, however, that this shall not be construed to permit any portion of a building on a lot to encroach upon another lot. That prior to commencement of structures of any kind, the Architectural Control Committee must approve all setback lines and all construction in writing. Said Committee is further granted control over construction of piers and any other structures extending into or on the water and written consent must be approved prior to commencement of construction as to length, width, and location.

¶ 4. While the record shows that the Committee has previously approved many boat storage structures attached to a garage or home, it has never before been presented with a plan to construct a detached, lakeside boathouse.

¶ 5. At a hearing on the parties' cross-motions for summary judgment, the Association argued that paragraph one of the agreement, by its express terms, bars detached boathouses, allowing only structures that are affixed to a garage. The trial court rejected this interpretation of paragraph one, observing that it clearly carves out an exception which permits a boathouse and that the Committee's refusal to allow the Pertzsches to build a boathouse simply because it would be the first one was arbitrary and capricious.

¶ 6. On appeal, the Association has set aside its assertion that the agreement prohibits construction of all detached boathouses. In its brief-in-chief, the Association now argues that the Committee's denial of the boathouse was based upon, and in conformance with, the standards set forth in paragraph two of the agreement. During oral argument before this court, the Association took yet another position on the issue, arguing that pursuant to paragraph one, the Committee can exercise its discretion to approve or deny requests for a boathouse without regard to the specific standards set forth in paragraph two. In other words, the Association argues that paragraph one is a "stand alone" provision that authorizes the Committee to make determinations regarding boathouses without regard to quality of workmanship and materials, harmony of external design with existing structures, and location with respect to topography, elevation, setback and the like.

¶ 7. We begin by identifying the standard of review. In their complaint, the Pertzsches sought a declaration that their request to construct a boathouse be granted for the reason that it was in keeping with the agreement. They also sought a declaration limiting the Committee's exercise of authority as it is contained in the agreement. The parties filed cross-motions for summary judgment on the basis that no disputed issues of material fact exist. We review a motion for summary judgment using the same methodology as the trial court. M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496, 536 N.W.2d 175 (Ct. App. 1995). Although summary judgment presents a question of law which we review de novo, we nonetheless value a trial court's decision on such a question. Id. at 497. Furthermore, this case requires us to construe the covenants in the agreement to determine whether the Committee had authority to deny the boathouse for the reasons stated in its letter. The interpretation of restrictive covenants is a question of law. Bubholz v. Dane County, 159 Wis. 2d 284, 291-92, 464 N.W.2d 67 (Ct. App. 1990).

¶ 8. We are mindful that Wisconsin public policy favors the free and unrestricted use of property. Dodge v. Carauna, 127 Wis. 2d 62, 65, 377 N.W.2d 208 (Ct. App. 1985). Consequently, restrictions contained in deeds must be strictly construed to favor the free use of property; such restrictions therefore must be expressed in clear and unambiguous language. Id.

¶ 9. As an initial matter, we accept the concession of the Association that the agreement allows detached, lakeside boathouses subject to the consent of the Committee. We agree with the trial court that the plain language of paragraph one clearly carves out an exception to allow for such structures: "No building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single family dwelling. . . and a private garage for not more than three cars, except that a boat house may be permitted with consent of the Architectural Control Committee." (Emphasis added.) The Association's original argument that this language created an exception only for attached or integrated boathouses is without merit, especially in light of paragraph four which explicitly requires garages to be attached to the home but makes no reference to a boathouse.

¶ 10. We now address the Association's argument that paragraph one is a "stand alone" provision that contains a standardless consent-to-construction covenant. We also find this argument to be completely without merit. If the Association were correct, then paragraph two would be superfluous. Alternatively, the Association posits that the criteria in paragraph two apply only to residences and garages, but not to boathouses. Again, this contravenes the plain language of the agreement that establishes in the first paragraph which buildings may be erected (single family dwellings, garages and boathouses) and establishes in the second paragraph the standards that the Committee shall adhere to in approving plans brought before it. There is no indication whatsoever in the agreement that the Committee's discretion with respect to residences and garages is limited to the specific standards in paragraph two, but its discretion with respect to boathouses is unfettered. Instead, paragraph two refers generally to a "building," and requires that all plans for a "building" be submitted to the Committee for approval "as to quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topograph and finish grade elevation and setback, front, back and side." Therefore, we conclude that under the explicit terms of the covenants, the Committee is authorized to approve or deny a request for a boathouse exclusively on the basis of those standards set forth in paragraph two.

¶ 11. We now turn to the central issue in this case, which is whether the Committee properly applied the standards in paragraph two of the agreement when it denied the Pertzsches' request for a boathouse as stated in this excerpt of the letter:

The grounds for said refusal include but are not limited to: its failure to conform to existing structures then and there existing; for not being in harmony of external design with existing structures with respect to topograph elevation and setback.
Whereas the covenants and restrictions obligate us to evaluate the impact on the entire subdivision, and whereas all of the other lots have been developed without permanent raised structures within fifty to seventy feet of the water, we find the boathouse to be nonconforming to the intent of harmony in setback, topography, and structure, therefore, we do not find that this exception would be in the interest of the riparian owners.

¶ 12. Under paragraph two of the agreement, the first criterion the Committee must consider is quality of workmanship and materials. The denial letter does not state that the quality of workmanship and materials is unacceptable. Therefore, we assume that the Committee had no objection to the boathouse based on this criterion.

¶ 13. The second criterion is harmony of external design with existing structures. The Committee construed this standard to mean that it can deny a detached boathouse because it is out of character with the existing structures in the community. Under this interpretation of the standard, the plans for the boathouse fail because there are no other lakeside boathouses. This, we believe, is what the Committee intended to communicate by its letter when it stated, "whereas all of •the other lots have been developed without permanent raised structures within fifty to seventy feet of the water."

¶ 14. However, the Committee misconstrues its mandate under this criterion. We believe the key word is "design." If the boathouse plans depicted an unacceptable architectural design, such as a Frank Lloyd Wright type of structure amongst a community of tudor-style structures, then the Committee could deny the plans for failing to be in harmony with external design. See, e.g., Town & Country Estates Ass'n v. Slater, 740 P.2d 668, 671 (Mont. 1987) ("harmony of external design" too vague to be enforced where development was a cacophony of architectural styles). But this criterion does not authorize the Committee to deny a boathouse because no one else has a similar structure. In order for the Committee to deny the boathouse within the terms of this criterion, it would have to make a decision based on the specific external design of the boathouse compared to the design of other existing structures. Again, the letter is silent with respect to this matter and therefore we assume the Committee had no objection to the architectural style of the boathouse.

¶ 15. The third criterion which the Committee must consider is location. The agreement is very specific as to what this criterion entails: "location with respect to topograph and finish grade elevation and setback, front, back and side." This means that the Committee can reject a building design or plan if the Committee does not approve of the configuration of its surface features with respect to its surroundings. For example, the Committee would be authorized to deny a boathouse if it was too high or improperly positioned on the lot relative to its surroundings. The letter makes clear, however, that the Committee mistakenly believed it was authorized under this standard to reject the boathouse because it was within fifty to seventy feet of the lake. The explicit language of paragraph five states that this restriction applies only to dwellings: "No dwelling shall be located on any lot nearer than fifty (50) feet to the lakeshore." To assume that the term "dwelling" includes a boathouse strains the language beyond its logical meaning. Later in this paragraph it states: "No building shall be located nearer than ten (10) feet to an interior lot line." Clearly, this latter sentence would include the boathouse while the former sentence would not.

¶ 16. To summarize, we find that the grounds for refusal expressed in the denial letter show that the Committee misconstrued its mandate. The letter evinces the Committee's mistaken belief that it had authority to refuse all detached boathouses. However, the fact that no other resident has constructed a detached boathouse is not a proper criterion under the covenants to refuse the Pertzsches' request. The Committee has no authorization to use the standards in the covenant to effectuate an express prohibition of detached, lakeside boathouses when the agreement expressly allows such structures to be built. While the Committee can control construction of boathouses using the criteria in paragraph two, it cannot ban them entirely.

¶ 17. Nevertheless, we are sympathetic with the thrust of the Association's objection, which is that the Pertzsches' boathouse is not in harmony with the general plan or scheme that has evolved in the Upper Oconomowoc Lake community. We are also cognizant of the holding in Zinda v. Krause, 191 Wis. 2d 154, 167, 528 N.W.2d 55 (Ct. App. 1995), that "where the purpose of a restrictive covenant may be clearly discerned from the terms of the covenant, the covenant is enforceable against any activity that contravenes that purpose." We cannot apply Zinda in this case, however, because we, like the Association, are constrained by the language of the agreement which allows boathouses to be constructed. Therefore, we must apply the rule that has long been the law in Wisconsin that deed restrictions must be strictly construed to favor unencumbered and free use of property and any derogation of such use must be expressed in clear, unambiguous and peremptory terms. Crowley v. Knapp, 94 Wis. 2d 421, 434-35, 288 N.W.2d 815 (1980). Because we conclude that the Committee was not authorized to refuse the Pertzsches' request for a boathouse for the reasons stated in the denial letter, we affirm the order of the trial court.

By the Court. — Order affirmed.

ANDERSON, J.

¶ 18. (concurring). I join in the

result because we are bound by precedent. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

¶ 19. The lead opinion correctly points out that our decision is driven by Wisconsin's public policy favoring the free and unrestricted use of property. Majority at ¶ 17. This public policy has a long history in Wisconsin and played an important role in the economic development of this state. Since statehood, the demands of a burgeoning economy and population necessitated flexible land use. Without a public policy favoring the free and unrestricted use of land, changes in the use of land required to keep the economy growing would not have been possible. See Casey J. Little, Note & Comment, Riss v. Angel: Washington Remodels the Framework for Interpreting Restrictive Covenants, 73 Wash. L. Rev. 433, 449 (1998). The development of commercial and manufacturing areas in our urban areas would not have been possible if restrictive covenants banned the construction of tanneries, liveries, slaughterhouses or breweries.

¶ 20. The public policy favoring the free and unrestricted use of real property was dominant in the United States throughout the nineteenth century; even governments imposed few land use restrictions. See Kenneth H. Young, 1 Anderson's American Law of Zoning § 1.02 (4th ed. 1996). But, facing overcrowding, blight and dislocation of use, New York adopted the first comprehensive zoning ordinance in 1916. Id. Today, zoning ordinances' restrictions on the free use of land are generally accepted for the purpose of promoting the public health, safety and general welfare. Willow Creek Ranch v. Town of Shelby, 224 Wis. 2d 269, 276-77, 592 N.W.2d 15 (Ct. App. 1998), aff'd, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693.

¶ 21. While zoning has been considered a legitimate restriction on the private use of real property, restrictive covenants imposed upon real property by owners and developers have not enjoyed the same status. As the lead opinion makes abundantly clear, Wisconsin disfavors privately imposed restrictions on the use of land. I believe that the time has come to abandon an out-of-date public policy in favor of a public policy that recognizes:

[H]ousing today is ordinarily developed by subdividers, who, through the use of restrictive covenants, guarantee to the homeowner that his house will be protected against adjacent construction which will impair its value, and that a general plan of construction will be followed. Restrictions enhance the value of the subdivision property and form an inducement for purchasers to buy lots within the subdivision. A covenant requiring submission of plans and prior approval before construction is one method by which guarantees of value and of adherence to a general scheme of development can be accomplished and maintained.

Davis v. Huey, 620 S.W.2d 561, 565 (Tex. 1981) (citations omitted).

¶ 22. The public policy favoring the free use of land has been abandoned in Restatement (Third) of Prop.: Servitudes § 4 (Introductory Note) (1998):

The general principles governing servitude interpretation . .. adopt the model of interpretation used in contract law and displace the older interpretive model used in servitudes law that emphasized the free use of land, sometimes at the expense of frustrating intent. In adopting this model, this Restatement follows the lead of courts that have recognized the important and useful role servitudes play in modern real-estate development. To the extent that the old canon favoring free use of land remains useful, its function is served in cautioning against finding that a servitude has been created where the parties' intent is unclear.. . and in construing servitudes to avoid violating public policy.... It also may play a role in limiting the creation of servitudes that burden fundamental rights... and limiting the rulemaking powers of community associations... . Aside from those situations, construing in favor of free use of land should play no role in interpreting modern servitudes. (Emphasis added.)

¶ 23. "[T]o ascertain and give effect to the likely intentions and legitimate expectations" of property owners, id., the Restatement adopts a new principle governing the interpretation of restrictive covenants:

Interpretation of Servitudes
(1) A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.
(2) Unless the purpose for which the servitude is created violates public policy, and unless contrary to the intent of the parties, a servitude should be interpreted to avoid violating public policy. Among reasonable interpretations, that which is more consonant with public policy should be preferred.

Id.

¶ 24. The justification for a new principle to guide the interpretation of restrictive covenants is provided in the commentary:

The rule that servitudes should be interpreted to carry out the intent of the parties and the purpose of the intended servitude departs from the often expressed view that servitudes should be narrowly construed to favor the free use of land. It is based in the recognition that servitudes are widely used in modern land development and ordinarily play a valuable role in utilization of land resources. The rule is supported by modern case law.

Id. § 4.1 cmt. a.

¶ 25. When this modern approach is employed by courts to review decisions of an architectural control committee, the question is no longer whether the committee's decision inhibits the free use of land but whether its decision is reasonable. See Allen Oshinski, Restrictive Covenants and Architectural Review: Some Suggested Standards, 27 J. Marshall L. Rev. 939, 941 (1994). The Restatement imposes a duty upon a committee "to act reasonably in the exercise of its discretionary powers including .. . design-control powers." Restatement (Third) of Prop.: Servitudes § 6.13(1)(c). See also Marvin J. Nodiff, Decision-Making in the Community Association: Do the Old Rules Still Apply?, 52 J. Mo. B. 141, 147 (1996). In applying the rule of reasonableness, one court places "special emphasis on arriving at an interpretation that protects the homeowners' collective interests." Riss v. Angel, 934 P.2d 669, 676 (Wash. 1997).

¶ 26. If I were to apply the modern approach to the decision of the Committee in this case, I would start with the discretion given to the Committee to grant permission to build a detached boathouse. Majority at ¶ 3. In exercising this discretion, the Committee's mandate is to enforce the restrictive covenants in such a manner as to give effect to the intent of the covenants and to protect the interest of all the homeowners in the subdivision. That there have been no other requests to construct detached boathouses in the subdivision, Majority at ¶ 4, demonstrates the collective interest of the members of the Upper Oconomowoc Lake Association that all boat storage structures be attached to a garage or home. Because the Committee must take into consideration the collective interest of the homeowners, the proposed boathouse's "harmony of external design with existing structures" and "location with respect to topograph," Majority at ¶ 3, it is reasonable for the Committee to decide that the intent of the restrictive covenants is not given effect by permitting the construction of a detached boathouse. Normandy Square Ass'n v. Ells, 327 N.W.2d 101, 104 (Neb. 1982) (it was reasonable for an architectural review committee to deny permission to build a fence because it violated the harmony of external design and location in relation to the surrounding structures and topography).

¶ 27. If I could use the modern approach to interpreting restrictive covenants, I would approve the action of the Committee because the proposed detached boathouse changed the neighborhood ambiance, backdrop and setting. The proposed boathouse would be the subdivision's only detached boat storage. These factors furnish an objective, reasonable and nonarbitrary basis for denying permission under the modern approach embodied in the Restatement.

       The letter approving the house plan and denying the boathouse was signed by the Committee's three volunteer members, Thomas L. Wavernek, Damian O. Fennig, and Donald Fellows, who are also defendants in this action. The fourth named defendant, Kenneth E. Millard, intervened as a party with a personal interest in the matter

       Paragraph four of the agreement states: "A minimum of a two car garage must be constructed for each residence and said two car garage must attach or touch upon some portion or part of said residence."

       Because we reject the argument that the covenants contain no specific standard of approval for boathouses, we also reject the Association's reliance on Dodge v. Carauna, 127 Wis. 2d 62, 377 N.W.2d 208 (Ct. App. 1985). In that case, we held that where a common grantor reserves the right to approve construction of a building by arbitrary standards, the exercise of that right must be reasonable. Id. at 66-67. We stated that a finding of reasonableness would depend on the developer's intent and objectives and the relation of the structure to its surroundings and to other buildings in the subdivision. Id. at 67. The Association asks us to remand this case for a finding on these evidentiary issues. However, because the standards of approval in this case are not arbitrary, but are clear and specific, we are precluded from inquiring into the developer's intent or into any other evidentiary matters outside the four corners of the agreement. See Zinda v. Krause, 191 Wis. 2d 154, 171, 528 N.W.2d 55 (Ct. App. 1995) (where the language of the covenant expresses a purpose contrary to the developer's subjective state of mind, the language of the covenant controls); Hall v. Church of the Open Bible, 4 Wis. 2d 246, 248, 89 N.W.2d 798 (1958) (parol evidence is not admissible to establish any intent other than that clearly expressed in the instrument itself).

       Topography refers to "the configuration of a surface including its relief and the position of its natural and man-made features" or "the physical or natural features of an object or entity and their structural relationships." WebsteR's Third New International Dictionary 2411 (1993).

       We acknowledge that some jurisdictions now question whether rules of strict construction should apply where the meaning of a subdivision's protective covenants are at issue and the dispute is among homeowners. See Riss v. Angel, 934 P.2d 669, 675-76 (Wash. 1997). These jurisdictions view restrictive covenants as valuable land use planning devices, Joslin v. Pine River Dev. Corp., 367 A.2d 599, 601 (N.H. 1976), and liberally construe restrictive covenants to give effect to the intent or purpose of the covenants rather than free use of the land. Riss, 934 P.2d at 676. However, in this case, the agreement unambiguously manifests an intent to allow boathouses, and we do not believe even a liberal construction of the covenants can overcome this clear expression.

       The rule of reasonableness has been applied to decisions of architectural control committees in other jurisdictions. Riss v. Angel, 934 P.2d 669, 677 (Wash. 1997); Palmetto Dunes Resort v. Brown, 336 S.E.2d 15, 19 (S.C. App. 1985); Normandy Square Ass'n v. Ells, 327 N.W.2d 101, 104 (Neb. 1982); Davis v. Huey, 620 S.W.2d 561, 565 (Tex. 1981).

       The case law and authorities applying the modern approach to interpreting restrictive covenants focus on common-interest communities, such as condominiums, cooperatives and homeowners associations. Casey J. Little, Note & Comment, Riss v. Angel: Washington Remodels the Framework for Interpreting Restrictive Covenants, 73 Wash. L. Rev. 433, 436 n.18; Restatement (ThiRd) op PROP.: Servitudes § 1.8 (1998).


source: Caselaw Access Project

author: LUNDSTEN, J. DYKMAN, J.

license: Public Domain

text:
    In re the Commitment of Ronald G. Sorenson: State of Wisconsin, Petitioner-Respondent, v. Ronald G. Sorenson, Respondent-Appellant.

    Court of Appeals

      No. 98-3107.

      Submitted on briefs December 13, 2000.

    Decided September 20, 2001.

    2001 WI App 251
    (Also reported in 635 N.W.2d 787.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of T. Christopher Kelly of Thomas, Kelly, Habermehl & Mays, S.C., Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Warren D. Weinstein, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ, Dykman and Lundsten, JJ.

       Petition to review granted 12-17-01.

       Petition to cross-review granted 12-17-01.

   LUNDSTEN, J.

¶ 1. Ronald G. Sorenson was adjudicated a sexually violent person pursuant to Wis. Stat. ch. 980 (1995-96). Sorenson complains that error occurred in his Chapter 980 trial when the trial court prohibited him from presenting evidence in his attempt to show that he was wrongly convicted in 1985 of the predicate sexual assault upon which the Chapter 980 petition was based.

¶ 2. Sorenson advances two arguments on appeal. First, he contends that issue preclusion may not be used offensively in a Chapter 980 trial to prohibit a respondent from presenting evidence that he did not commit a sexually violent offense underlying a prior conviction. Second, he asserts that even if the offensive use of issue preclusion is generally permitted in Chapter 980 trials, it was fundamentally unfair to apply the doctrine under the particular facts of his case. We reject Sorenson's first argument and remand for a determination on the second.

A. BACKGROUND

¶ 3. In 1985, Sorenson was convicted of first-degree sexual assault of his seven-year-old daughter, L.S. During that criminal trial, L.S. alleged that both her father, Ronald Sorenson, and her father's brother, Donald Sorenson, sexually assaulted her. See State v. Sorenson, 143 Wis. 2d 226, 237-38, 421 N.W.2d 77 (1988). Ronald's brother, Donald, was also convicted of first-degree sexual assault of L.S. in a separate trial. See State v. Sorenson, 152 Wis. 2d 471, 477, 449 N.W.2d 280 (Ct. App. 1989).

¶ 4. Six years later, in 1991, Sorenson filed a motion for a new trial, asserting newly discovered evidence. He claimed that L.S. had recanted her trial testimony. Before the trial court ruled on the merits of this motion, Sorenson and the State reached an agreement that resulted in an amended judgment reducing his sentence and the withdrawal of his motion for a new trial.

¶ 5. Sorenson was released on parole in October of 1991. His parole included conditions requiring that he complete a sex offender treatment program and that he not have contact with any children.

¶ 6. Sometime in 1993, a woman brought her daughter, A.L., to the City of Elroy police station and complained that A.L. had been sexually assaulted by Sorenson. A.L. told police that, when she was alone with Sorenson, he touched her vaginal area. Parole authorities were notified and also learned that Soren-son failed to successfully complete the sex offender treatment program in which he had enrolled. Sorenson's parole was revoked in May of 1993 on the basis that he had unauthorized contact with several minor children and because he had touched A.L.'s vaginal area.

¶ 7. Prior to Sorenson's scheduled release from prison in 1995, the State filed a petition to have Sorenson civilly committed as a sexually violent person pursuant to Wis. Stat. ch. 980. Before trial on the Chapter 980 petition, the State filed a motion requesting that Sorenson be prohibited at trial from: (1) eliciting evidence to impeach his underlying conviction and (2) eliciting evidence that L.S. recanted her testimony. While the trial court seemed to reject the State's argument that Sorenson should not be permitted to present recantation evidence due to issue preclusion, it eventually ruled that such evidence would not be permitted because admission would mean relitigation of the prior conviction and would cause confusion and unfair prejudice to Sorenson's detriment.

¶ 8. At the Chapter 980 trial, the State presented evidence showing that Sorenson had been convicted in 1985 of sexually assaulting his daughter. The State used that evidence in part to support its burden of proving that Sorenson suffered from a mental disorder and that, because of the disorder, it was substantially probable that he would engage in future acts of sexual violence. The jury returned a verdict against Sorenson, determining that he is a sexually violent person. This appeal followed.

¶ 9. Additional facts will he set forth below where pertinent to the analysis.

B. DISCUSSION

¶ 10. On appeal, Sorenson sets forth two arguments. First, he contends that issue preclusion may not be used offensively in a Chapter 980 trial to prohibit a respondent from presenting evidence that he did not commit a sexually violent offense underlying a prior conviction. Second, he asserts that even if the offensive use of issue preclusion is generally permitted in Chapter 980 trials, it was fundamentally unfair to apply the doctrine under the particular facts of his case. We will first set forth the general law relating to issue preclusion and then address Sorenson's arguments.

1. The Doctrine Of Issue Preclusion

¶ 11. The doctrine of issue preclusion, formerly referred to as collateral estoppel, prohibits relitigation of issues conclusively decided in a prior action between the same or different parties. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550-51, 525 N.W.2d 723 (1995). The use of issue preclusion may be described as either "offensive" or "defensive." The defensive use of issue preclusion prevents a plaintiff from relitigating an issue decided in a prior action, while the offensive use of issue preclusion prevents a defendant from relitigating an issue decided in a prior action. Michelle T. v. Crozier, 173 Wis. 2d 681, 684 n.1, 698, 495 N.W.2d 327 (1993). The term "offensive" is used because this latter application can be characterized as allowing a plaintiff to offensively use the doctrine to establish an element of the plaintiffs case.

¶ 12. The goals of issue preclusion include judicial efficiency and protection against repetitious litigation. These goals are balanced against the right to litigate claims before a jury. Id. at 688. Formalistic requirements for the application of issue preclusion have given way to "a looser, equities-based interpretation of the doctrine." Id. Under this more modern analysis, courts consider an array of factors in deciding whether issue preclusion is equitable in a particular case.

¶ 13. The application of issue preclusion requires a two-step analysis. The first step involves a question of law: Is the litigant against whom issue preclusion is being asserted in privity, or does the litigant have sufficient identity of interest with a party to the prior proceeding such that applying issue preclusion to the litigant would not violate his or her due process rights? Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 224, 594 N.W.2d 370 (1999).

¶ 14. The second step involves a question that is generally discretionary: Does the actual application of issue preclusion in the particular case comport with principles of fundamental fairness? Id. at 225. An array of factors bearing on this second step was identified in Michelle T.:

(1) "[C]ould the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment"?
(2) "[I]s the question one of law that involves two distinct claims or intervening contextual shifts in the law"?
(3) "[D]o significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue"?
(4) "[H]ave the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second"?
(5) "[A]re matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?"

Michelle T, 173 Wis. 2d at 689 (citing Restatement (Second) of Judgments § 28 (1980)). While the determination of this second step is generally a discretionary determination for the trial court, some of the Michelle T. factors also present questions of law. Paige K.B., 226 Wis. 2d at 225.

2. Offensive Use Of Issue Preclusion In A Chapter 980 Trial

¶ 15. Sorenson acknowledges that our supreme court held in Michelle T. that the offensive use of issue preclusion is permitted against a defendant in a civil trial when a fact or issue has been decided in the civil defendant's prior criminal trial. He contends, however, that Michelle T. does not apply to Chapter 980 trials, despite the fact that they are civil trials. Sorenson's reasoning is disclosed in his following assertions:

(1) In Chapter 980 trials, an important part of the State's evidence showing that respondents have a mental disorder and that there is a substantial probability they will engage in future acts of sexual violence typically includes a conviction showing the commission of the predicate sexually violent offense or other sexually violent offense. Thus, whether a respondent committed the prior sexually violent offense is an "essential fact" in a Chapter 980 trial.
(2) Criminal defendants have a constitutional right to have a jury determine the essential facts upon which the State relies in seeking to prove its case.
(3) The constitutional right to have a jury determine the essential facts in a case is so critical that the offensive use of issue preclusion is prohibited in criminal cases.
(4) WISCONSIN Stat. § 980.05(1m) directs that "[a]ll constitutional rights available to a defendant in a criminal proceeding" are available to respondents in Chapter 980 trials.
(5) By virtue of Wis. Stat. § 980.05(1m), the offensive use of issue preclusion is prohibited in a Chapter 980 trial.

¶ 16. Before proceeding, we clarify that Sorenson does not contend on appeal that his proffered recantation evidence would have been admissible to rebut proof from the State that he was convicted of sexually assaulting L.S. Rather, Sorenson asserts that the evidence would have undermined the State's proof with respect to two other elements: whether he currently suffers from a mental disorder, and whether, because of that disorder, it is substantially probable that he will engage in future acts of sexual violence. See Wis. Stat. § 980.02.

¶ 17. We also pause to note that Sorenson cites only non-binding authority for the proposition that the offensive use of issue preclusion is prohibited in criminal cases. We find no cases from Wisconsin that have decided the issue. However, in light of how we resolve the question presented, we need not address the issue. We will assume, without deciding, that the offensive use of issue preclusion is prohibited in Wisconsin criminal cases.

¶ 18. Although Sorenson sometimes frames this first issue as whether courts may use the doctrine of issue preclusion to prohibit evidence offered by a Chapter 980 respondent, his reasoning has much broader implications. In effect, he argues that in every Chapter 980 trial the State is statutorily obligated to relitigate prior convictions for sexually violent offenses. Accordingly, we must construe the statutory language at issue.

¶ 19. The construction of a statute is a question of law which we review de novo. State v. Irish, 210 Wis. 2d 107, 110, 565 N.W.2d 161 (Ct. App. 1997). The guiding principle in statutory construction is to discern legislative intent. Id. We first look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). In addition to these basic principles, there are three more rules of statutory construction that apply.

¶ 20. First, when there is a conflict between general and specific statutory provisions, the specific provision takes precedence. Gillen v. City of Neenah, 219 Wis. 2d 806, 822, 580 N.W.2d 628 (1998).

¶ 21. Second, the plain language of a statute should not be construed in a manner that results in absurd or unreasonable consequences. State v. Yellow Freight Sys., Inc., 101 Wis. 2d 142, 153, 303 N.W.2d 834 (1981).

¶ 22. Third, when statutory language is ambiguous, we may examine other construction aids such as legislative history, context, and subject matter. County of Jefferson v. Renz, 231 Wis. 2d 293, 302, 603 N.W.2d 541 (1999). A statute is ambiguous if reasonable persons could disagree as to its meaning. Id. The interaction of two or more statutes can operate to create an ambiguity. Trojan v. Bd. of Regents, 100 Wis. 2d 53, 57, 301 N.W.2d 269 (Ct. App. 1980), rev'd on other grounds, 104 Wis. 2d 277, 311 N.W.2d 586 (1981).

¶ 23. Turning to the statutory language, we find that there is a conflict between the general provision in subsection (1m) and the more specific provision in subsection (4) of Wis. Stat. § 980.05. Subsection (1m) very generally provides that "[a] 11 constitutional rights available to a defendant in a criminal proceeding are available to the person." Reading this subsection as Sorenson does puts it in conflict with subsection (4), which provides:

Evidence that the person who is the subject of a petition under s. 980.02 was convicted for or committed sexually violent offenses before committing the offense or act on which the petition is based is not sufficient to establish beyond a reasonable doubt that the person has a mental disorder.

(Emphasis added.) By providing that "[e]vidence that [a Chapter 980 respondent] was convicted for . . . sexually violent offenses ... is not sufficient to establish beyond a reasonable doubt that the [respondent] has a mental disorder," the legislature communicated that it contemplated conviction evidence would be used as part of the evidence establishing a mental disorder, but that conviction evidence, by itself, is insufficient to support the State's burden of proof.

¶ 24. Moreover, even if the interplay of subsections (lm) and (4) is not viewed as a conflict, at a minimum it creates ambiguity which permits us to examine context and subject matter. And, even if subsection (4) did not exist and we believed that the plain language of subsection (lm) prohibited the offensive use of issue preclusion, we would find that such interpretation leads to absurd and unreasonable results.

¶ 25. Sorenson's interpretation of the statute would mark a dramatic shift in how Chapter 980 trials are conducted, requiring a retrial of prior sexual assault convictions even though the person in question has previously been found guilty of the offense beyond a reasonable doubt. Absent a stipulation by a respondent, his sexual assault victim or victims from these prior cases would be required to endure a second trial.

¶ 26. We do not believe that the legislature intended to subject victims and their families to the ordeal of a second trial when the respondent has already been found guilty of that crime beyond a reasonable doubt. If the legislature had intended this to be the procedure in Chapter 980 trials, it would have provided so expressly.

¶ 27. In addition, while Sorenson has pointed to cases from some other jurisdictions, there appears to be no decision from either the United States Supreme Court or a Wisconsin court holding that the offensive use of issue preclusion is prohibited in a criminal case. This dearth of case law on the topic in the criminal context shows that we are dealing with an unusual application of a constitutional right. This is just the sort of situation in which the blanket transporting of rights would lead to an absurd and unintended consequence.

¶ 28. Accordingly, we hold that the doctrine of issue preclusion is available for use offensively in Chapter 980 trials. When a respondent was previously convicted of a sexually violent offense in a trial, issue preclusion may be used to prevent the respondent from offering evidence to show that he or she did not commit the prior offense.

3. Application Of Issue Preclusion To The Facts In This Case

¶ 29. Sorenson argues that even if issue preclusion may be used offensively in Chapter 980 trials, it was nonetheless unfair to apply the doctrine at his trial. Sorenson's argument in this respect is directed at the fifth Michelle T factor. He argues that if the trial court had properly applied this factor, it would have required the State to prove anew that he sexually assaulted his daughter in 1985.

¶ 30. The trial court did not, in any meaningful manner, attempt to determine under issue preclusion analysis whether it was equitable to permit the State to prove the prior offense with the use of conviction evidence. Instead, the trial court ultimately resolved the matter by excluding the recantation testimony on the basis that its admission would require relitigation of the sexual assault allegation, thereby causing confusion and misleading the jury to Sorenson's detriment. Without citing to the evidence code, the court apparently analyzed the matter under Wis. Stat. § 904.03. The State has adopted and defended this methodology on appeal.

¶ 31. The approach used by the trial court, and defended by the State, misconstrues the issue. The question was not whether Sorenson should have been allowed to present evidence undercutting the validity of his prior conviction. Rather, the question was whether the State should have been permitted to use the 1985 conviction to establish the fact that Sorenson sexually assaulted his daughter. Either it was proper to permit the State to use the conviction in this manner or the State should have been required to prove the assault by other means. It makes no sense to permit the admission of a prior conviction as evidence that Sorenson assaulted his daughter and then also require the parties to relitigate the assault. Wisconsin Stat. § 904.03 was an incorrect framework for analyzing the matter.

¶ 32. In light of our holding that issue preclusion is applicable to Chapter 980 trials, we agree with Sorenson that the trial court should have analyzed admission under the fifth Michelle T. factor. This factor asks whether there are matters of public policy and individual circumstances which render the application of issue preclusion fundamentally unfair. Michelle T., 173 Wis. 2d at 689. We also agree with Sorenson that this fifth prong includes consideration of whether circumstances have changed since the criminal conviction such that it is inequitable to apply issue preclusion. This equitable determination is a matter of trial court discretion. Paige K.B., 226 Wis. 2d at 225.

¶ 33. Having concluded that the trial court's alternate basis for excluding the recantation testimony cannot stand., we remand to the trial court with directions that it consider the question under the fifth Michelle T factor and any other factors which may be relevant under issue preclusion analysis.

¶ 34. We must remand, rather than attempt to resolve the matter, for two reasons. First, we may not apply a discretionary test in the trial court's stead. See Wisconsin Ass'n of Food Dealers v. City of Madison, 97 Wis. 2d 426, 434-35, 293 N.W.2d 540 (1980).

¶ 35. Second, we cannot conclude that no reasonable trial court would have permitted the State to use Sorenson's 1985 conviction to prove that he assaulted his daughter. The record does suggest that one individual circumstance which might render the application of issue preclusion fundamentally unfair under the fifth Michelle T. factor is whether there was newly discovered evidence which would have warranted a new trial in Sorenson's prior criminal case. This topic was raised by Sorenson in 1991, but abandoned pursuant to an agreement with the prosecution. However, regardless what would have happened had the claim been pursued in 1991, it is far from clear that such an inquiry would have weighed in favor of Sorenson at the time of his Chapter 980 trial, or whether it would if we granted him a new trial at this point in time. The test for newly discovered evidence includes asking whether it is reasonably probable that a new trial will produce a different result. State v. Carnemolla, 229 Wis. 2d 648, 656, 600 N.W.2d 236 (Ct. App. 1999). Here, the record does not disclose the particulars of Sorenson's daughter's alleged recantation and, at the same time, it does disclose that Sorenson confessed to at least two people after 1991 that he sexually assaulted his daughter.

¶ 36. Consequently, we cannot conclude from the record before us that no reasonable trial court would have allowed the State to use Sorenson's 1985 conviction to prove that he assaulted his daughter. We therefore remand for a determination on that issue. If the trial court concludes that the application of issue preclusion was improper, the judgment will remain reversed and Sorenson must be given a new Chapter 980 trial. If the trial court concludes that the application of issue preclusion was proper, it shall reinstate the judgment.

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

DYKMAN, J.

¶ 37. (concurring in part; dissenting in part). I agree with the majority that the judgment in this matter should be reversed. But I would remand for a trial at which Sorenson would be permitted to introduce evidence of the victim's recantation. The jury could then weigh that testimony, Sorenson's possible testimony, and the testimony of the other witnesses to determine whether it was substantially probable that Sorenson would engage in acts of sexual violence in the future.

¶ 38. I also agree with the majority that trial courts are not barred from applying the doctrine of offensive issue preclusion in Wis. Stat. ch. 980 cases. Where I part company is with the majority's conclusion that "Sorenson's interpretation of the statutes would mark a dramatic shift in how Chapter 980 trials are conducted, requiring a retrial of prior sexual assault convictions. . . ." Majority at ¶ 25. While Sorenson does argue that offensive issue preclusion is unavailable in ch. 980 trials, he also argues that in this case, an analysis of the factors listed in Michelle T. v. Crozier, 173 Wis. 2d 681, 689, 495 N.W.2d 327 (1993), requires that he be permitted to present evidence of the victim's recantation. Recantation cases are rare, and it is the victim's recantation in this case that separates it from the usual ch. 980 case. In the usual ch. 980 case where a trial is held, the Michelle T. factors would generally balance out in favor of the State.

¶ 39. I also disagree with the majority's decision to remand to the trial court to consider the fifth Michelle T. factor. The majority does so because it labels the fifth Michelle T factor discretionary, and therefore reviewed for an erroneous exercise of discretion. It is not that easy. The fifth factor is whether there "are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair...." Michelle T., 173 Wis. 2d at 689. The issue here is whether the circumstances have changed by virtue of the victim's recantation which make it inequitable to apply issue preclusion to bar evidence of that recantation. Because the majority examines that issue using the wrong standard of review, it reaches the wrong result.

¶ 40. In Paige K.B. ex rel. Peterson v. Steven G.B., 226 Wis. 2d 210, 225, 594 N.W.2d 370 (1999), the supreme court noted that in Ambrose v. Continental Ins. Co., 208 Wis. 2d 346, 560 N.W.2d 309 (Ct. App. 1997), we had concluded that certain of the Michelle T. factors present questions of law that we review de novo. In Ambrose, we also noted that the standard of review of a particular decision on issue preclusion may be affected by the context in which its application is sought. Ambrose, 208 Wis. 2d at 356. The supreme court in Paige K.B. also cited Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990), for the proposition that "[t]he availability of collateral estoppel [issue preclusion] is a mixed question of law and fact in which legal issues predominate." Paige K.B., 226 Wis. 2d at 225.

¶ 41. Certainly, whether public policy renders the use of offensive issue preclusion fundamentally unfair is a question of law. The legislature, not the courts, determines the public policy of Wisconsin. Rice v. City of Oshkosh, 148 Wis. 2d 78, 91, 435 N.W.2d 252 (1989). And the policy the legislature has set for ch. 980 proceedings is that "all rules of evidence in criminal actions apply," and "All constitutional rights available to a defendant in a criminal proceeding are available to the [subject of the petition]." Wis Stat. § 980.05(1m) (1995-96). One of the basic concepts in criminal cases is that a defendant must be given a fair opportunity to defend against the State's accusations and be permitted to call witnesses to challenge the State's accusation. Chambers v. Mississippi, 410 U.S. 284, 294 (1973). I conclude that public policy requires that Sorenson be permitted to present evidence of the victim's recantation.

¶ 42. "Individual circumstances" are certainly factual in nature, but here the individual circumstance which dwarfs all others is the victim's recantation. That recantation is undisputed. We do not give a deferential review to matters where facts are undisputed. In re Sarah R.P., 2001 WI App 49, ¶ 6, 241 Wis. 2d 530, 624 N.W.2d 872. While the weight and credibility of evidence are matters in which we defer to a trial court, Matter of Estate of Huehne, 175 Wis. 2d 33, 43, 498 N.W.2d 870 (Ct. App. 1993), in ch. 980 proceedings, the subject of a ch. 980 petition is entitled to a jury trial. A trial court may not exclude relevant evidence because it concludes that the jury would not find the evidence persuasive. See Wis. Stat. § 904.03 (1995-96). Thus, I conclude that the individual circumstances, i.e. the victim's recantation, would render it fundamentally unfair to apply offensive issue preclusion to prevent Sorenson from presenting the recantation evidence to the jury.

¶ 43. I agree with the majority that it is far from clear that an inquiry into Sorenson's innocence would weigh in favor of Sorenson. But I view the real issue as whether we should adopt rules which effectively prevent an innocent person from demonstrating his or her innocence. The rule the majority has adopted has, as a practical matter, made it difficult to the point of near impossibility for an innocent person facing a ch. 980 proceeding to try to show a jury that he or she was wrongly convicted and therefore not dangerous. I would relax that standard somewhat. In the usual ch. 980 case where there is no victim recantation or similar factor, there would be no reason why offensive collateral estoppel would not apply to prevent a challenge to the underlying judgment of conviction. But where, as here, there is a factor which, if believed by a jury, would cast significant doubt on that conviction, and hence the likelihood of future dangerousness, I would leave it to a jury to sort out the truth. I therefore respectfully concur in the majority's mandate, though not its reasoning or directions.

       All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.

       At a trial on a Chapter 980 petition, the State must prove the following:
      (1) That the person who is the subject of the petition has been convicted of a sexually violent offense;
      (2) That at the time the petition was filed, the person was within ninety days of release from a sentence imposed for a conviction for a sexually violent offense;
      (3) That the person currently has a mental disorder; and
      (4) That the person is dangerous to others because the person has a mental disorder that creates a substantial probability that he or she will engage in future acts of sexual violence.
      Wis. Stat. §§ 980.02(2) and 980.05(3)(a); State v. Thiel, 2000 WI 67, ¶ 11, 235 Wis. 2d 823, 612 N.W.2d 94.

       As argued and briefed by the parties, this case does not present the arguably distinct question of whether the application of issue preclusion in a case like this also precludes a respondent from exploring the effect of a recanting victim on the opinion of an expert witness. The record does not indicate that Sorenson was prohibited from questioning the expert witnesses on this topic and Sorenson has not raised this issue.

       The usual Wis. Stat. ch. 980 case will often involve a guilty or no-contest plea to the underlying crime. Generally, issue preclusion is only available when the prior adjudication was the result of a trial. See Michelle T. v. Crozier, 173 Wis. 2d 681, 687, 495 N.W.2d 327 (1993). Thus, while the majority asserts that Sorenson's view would make dramatic changes in the way ch. 980 matters are tried, in reality the opposite is true.

       Under the majority's theory, trial courts could come to differing conclusions as to the public policy of Wisconsin and an appellate court would affirm if the courts gave sufficient reason for their conclusions. This seems a strange way to determine the public policy for the State.

       The majority is concerned with the "particulars" of what it terms an "alleged recantation." Not even the State doubts that L.S. testified at a motion hearing that Sorenson was not the person who sexually assaulted her. Presumably, the "particulars" of recantation would make it more or less believable. That, in the context of a ch. 980 proceeding, is a matter for the jury. See Kinship Inspection Serv., Inc. v. Newcomer, 231 Wis. 2d 559, 583, 605 N.W.2d 579 (Ct. App. 1999) (credibility of witnesses is left to the province of the jury).

        But see note 1.