author: SCHUDSON, J.

text:
    Ricky D. Stephenson, Individually and as Personal Representative for the Estate of Kathy M. Stephenson, Plaintiff-Respondent, v. Universal Metrics, Incorporated, American Family Mutual Insurance Company and Ohio Casualty Insurance Company, West American Insurance Company, Defendants, John H. Kreuser and Sentry Insurance, a mutual insurance, Defendants-Appellants.

    Court of Appeals

      No. 00-1397.

      Submitted on briefs April 4, 2001.

    Decided May 15, 2001.

    2001 WI App 128
    (Also reported in 630 N.W.2d 767.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs oí Patrick S. Nolan of Bor-gelt, Powell, Peterson & Frauen, S.C., of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael L. Bertling of McLario, Helm & Bertling, S.C., of Milwaukee.
    Before Wedemeyer, P.J., Fine and Schudson, JJ.

      Petition to review granted.

   SCHUDSON, J.

¶ 1. John H. Kreuser and his insurer, Sentry Insurance (collectively, "Kreuser") appeal from the nonfinal circuit court order denying their motion for summary judgment. Kreuser argues that the court erred in concluding that WlS. STAT. § 125.035(2) (1997-98), which he characterizes as "Wisconsin's Liquor Liability Immunity Statute," did not immunize him from liability for his alleged conduct in failing to drive another adult home after stating that he would do so.

¶ 2. We conclude that the circuit court correctly determined that Kreuser's alleged conduct fell outside the parameters of the immunity granted under WlS. STAT. § 125.035(2). We further conclude that Kreuser's alleged conduct is encompassed by the standards declared in Restatement (Second) OF Torts § 324A (1965), adopted by the Wisconsin Supreme Court and most recently reiterated in Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, 611 N.W.2d 906. Accordingly, we affirm.

I. BACKGROUND

¶ 3. According to the amended complaint, on December 4, 1998, Kreuser was attending a "meeting" at the Silver Spring Country Club; the meeting was held by his employer, Universal Metrics, Inc., to "further the business interests of UMI by way of creating good will between it and it's [sic] employees, and for purposes of increasing employee morale." Among the other Universal employees at the meeting was Michael T. Devine, who became intoxicated. Kreuser assured Silver Spring personnel that he would drive Devine home. Kreuser, however, failed to do' so. Devine, driving away from the country club, crossed the center line on Silver Spring Road and struck a motor vehicle driven by Kathy Stephenson. Both Devine and Stephenson died as a result of the collision.

¶ 4. Marge Kubowski, a Silver Spring bartender, testified at the inquest into the deaths of Stephenson and Devine. Her testimony, included in the summary judgment submissions, told of Kreuser's assurance that he would drive Devine home:

A: ... People just were making different comments about [Devine], And at one point he came up to the bar and ordered a beer, and that is when I noticed that he had [had] too much to drink and I couldn't serve him.
Q: ... Do you recall at that point expressing concern that he should not drive, or he should get a ride?
A: That's correct.
Q: How did you express, did you verbalize that?
A: Yes, I did, more than once.
Q: And did you get any response from anybody?
A: Yes, I did.
Q: From who[m]?
A: A guy [Kreuser] that was standing by the bar that was standing next to this particular guy [Devine] that was not getting anything else to drink.
Q: What kind of response did you receive?
A: He acted like I was kidding at first, you know. He kind of chuckled back. And I said, "I'm being very serious. This man needs a ride home. He cannot leave this country club in this condition." And he said, "Don't worry, I'll give him a ride." And I said, "Are you sure?" Amd he said, "I promise I'll give him a ride home."

Kreuser, however, remembered it differently. At his deposition, he testified:

Q: Okay. After hearing the bartender ask Mike D[e]vine whether he had a ride home, what did you do?
A: I had just turned to see what was going on, more or less, and Mike had made a motion like I was it.
Q: All right. And he made a motion with his head?
A: Yes.
Q: So you interpreted his motion to be a signal to the bartender to you that you were his ride home?
A: Uh-huh.
Q: Is that a yes?
A: Yes.
Q: So you saw him do that?
A: Yes.
Q: And she was looking at him when — the bartender was looking at him when he did that?
A: Yes.
Q: And what did you do in response to that?
A: I just nodded my head.
Q: To who?
A: To the bartender.
Q: And by nodding your head you were indicating to the bartender that you were going to give him a ride home, correct?
A: Yes.

Irrespective of which version is correct (and we, of course, may not find facts, see Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980) (court of appeals is precluded from making factual determinations when evidence is controverted)), the upshot of both versions is that Kreuser voluntarily agreed to drive Devine home.

¶ 5. Kathy Stephenson's husband, individually and as the personal representative of her estate, brought an action against several defendants including Universal, Kreuser, their insurers, and the insurer providing both liability coverage to Devine and under-insured motorist coverage to Kathy Stephenson. The circuit court granted summary judgment to Universal and its insurer, West American, concluding that, pursuant to Greene v. Farnsworth, 188 Wis. 2d 365, 525 N.W.2d 107 (Ct. App. 1994), under Wis. Stat. § 125.035(2), they were immune from liability. The court also concluded, however, that under Gritzner v. Michael R., 228 Wis. 2d 541, 598 N.W.2d 282 (Ct. App. 1999), Kreuser was not immune.

II. DISCUSSION

¶ 6. As this court has explained:

"Summary judgment is appropriate to determine whether there are any disputed factual issues for trial and 'to avoid trials where there is nothing to try.'" While we apply the same methodology as the trial court when reviewing summary judgment, we owe no deference to the conclusion of the trial court. We first examine the pleadings to determine whether they state a claim for relief. If the pleadings state a claim and the responsive pleadings join the issue, we then must examine the evidentiary record to analyze whether a genuine issue of material fact exists or whether either party is entitled to a judgment as a matter of law.

Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 436-37, 531 N.W.2d 606 (Ct. App. 1995) (citations omitted).

¶ 7. The Wisconsin Supreme Court has adopted the negligence standards articulated in RESTATEMENT (Second) of Torts § 324A (1965), "Liability to Third Person for Negligent Performance of Undertaking." Am. Mut. Liab. Ins. Co. v. St. Paul Fire & Marine Ins. Co., 48 Wis. 2d 305, 313, 179 N.W.2d 864 (1970); Gritzner, 2000 WI 68 at ¶ 56. The Restatement provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965) (emphases and footnote added.)

¶ 8. Kreuser does not dispute that, at least in theory, the words of the Restatement could encompass the allegations against him. After all, as he must concede, the amended complaint alleges that he "voluntarily assumed a duty" to render services to Devine under circumstances in which he knew or should have known that any failure to perform those services would create "an unreasonable risk of harm" to Devine and others. Kreuser argues, however, that "the liability of an adult charged with the care of a minor," considered in Gritzner, cannot "be equated to the liability of an employee for another's actions at an employer-sponsored Christmas party." Further, Kreuser argues, any liability he otherwise might have for failing to drive Devine home is precluded by the immunity granted under WlS. Stat. § 125.035(2). We disagree.

¶ 9. First, although Gritzner did involve questions of an adult's liability for his alleged negligent failure to warn others of a ten-year-old child's "propensity to engage in inappropriate sexual acts" with other children, and for his alleged negligent failure to control the child's conduct, Gritzner, 2000 WI 68 at ¶¶ 2, 7, the supreme court's discussion of the Restatement's "Liability to Third Person for Negligent Performance of Undertaking" is not limited to those facts. Id. at ¶ 56. Indeed, the supreme court emphasized that the Restatement's "standard of conduct applies to anyone 'who, having no duty to act, gratuitously undertakes to act and does so negligently.'" Id. (emphasis added) (quoting Am. Mut. Liab. Ins. Co., 48 Wis. 2d at 313, a case involving whether a boiler insurer had negligently performed boiler inspections). Thus, we conclude, the Restatement's standards do apply to Kreuser's liability to third persons for his alleged negligent failure to perform the undertaking he promised to render.

¶ 10. Second, we read nothing in WlS. Stat. § 125.035(2) to immunize Kreuser from his potential liability for negligent failure to perform the undertaking he allegedly promised.

¶ 11. The interpretation of Wis. Stat. § 125.035(2) presents a question of law, which we review de novo. Greene, 188 Wis. 2d at 370. WISCONSIN Stat. § 125.035(2) provides: "A person is immune from civil liability arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person." The statute is clear. As we explained, it "clearly and unambiguously immunizes persons from civil liability in circumstances . . . where one adult furnishes another with alcohol." Greene, 188 Wis. 2d at 370. Here, Kreuser is not alleged to have furnished Devine with alcohol. Kreuser's liability does not rest on any allegation that he was, in the words of the statute, "procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to [Devine]." See Wis. Stat. § 125.035(2).

¶ 12. Kreuser contends, however, that if "procuring," under Wis. Stat. § 125.035(2), does not encompass his alleged conduct, an unreasonable result is inevitable. He points out that bartenders and even drinking companions who encourage a person to get drunk and drive could be immune, see Greene, 188 Wis. 2d at 370-72, but a designated driver who fails to fulfill his responsibility could be liable. Thus, he maintains, rejection of his position "may utterly destroy budding designated driver programs in this state, because designated drivers may fear liability for inadequately performing or failing to perform their voluntary duty."

¶ 13. We acknowledge that Kreuser may have identified a potentially ironic result flowing from the interplay of Wis. Stat. § 125.035(2) and the legal principles recognized by the Restatement. We must not, however, expand the statute beyond its clear and unambiguous scope as intended by the legislature which, we presume, was fully familiar with the well-established and long-standing principle that those who voluntarily assume a duty are liable if they breach that duty.

¶ 14. We see nothing in Wis. Stat. § 125.035(2) that would trump the applicability of the Restatement here and thus remove from the Restatement's reach those who clearly fall within its scope. And, absent a legislative pronouncement requiring us to do so, we certainly will not relieve designated drivers, and others who volunteer to drive intoxicated individuals home, of liability for their failure to fulfill responsibilities they have assumed voluntarily.

By the Court. — Order affirmed.

       In an order dated August 8, 2000, we granted leave to appeal from the May 9, 2000 nonfinal order, but specified that interlocutory review would encompass only the circuit court's denial of the petitioners' motion for summary judgment.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Kreuser's brief-in-chief to this court, without providing any record reference, states: "Kreuser said nothing, but simply nodded his head once affirmatively." Further, neither of Kreuser's briefs on appeal referred us to Kubowski's inquest testimony, in which she stated that Kreuser did more than merely "nod" his assent to assuming the burden of driving Devine home.
      Under our view of the Rules of Professional Conduct for Attorneys, a lawyer has a duty to disclose important information to an appellate tribunal even though it may be adverse to his or her client's position. See SCR 20:3.3(a)(3) (2000) ("A lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."). And, of course, lawyers may not knowingly make any misrepresentation to a tribunal. See SCR 20:3.3 (a)(1) (2000) (forbidding counsel from knowingly "mak[ing] a false statement of fact or law to a tribunal").
      Here, we recognize that Kreuser's counsel's representations were ones of fact, not law, and that the countervailing factual version subsequently was presented by Stephenson's counsel in respondent's appellate brief. We also accept that Kreuser's counsel accurately related Kreuser's version of what took place. An acknowledgment of Kubowski's version, however, would have been appropriate under the rules of appellate procedure. See Wis. Stat. Rule 809.19(l)(d) (appellant's brief must contain a statement of the case, which is required to include "a description of the nature of the case; the procedural status of the case leading up to the appeal; the disposition in the trial court; and a statement of facts relevant to the issues presented for review, with appropriate references to the record"). (Emphasis added.) We also remind counsel that the rules require a record reference for each statement of fact presented in a brief. See id.

       At the time of the circuit court decision, the supreme court had not decided Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, 611 N.W.2d 906, affirming, in part, this court's decision in Gritzner v. Michael R., 228 Wis. 2d 541, 598 N.W.2d 282 (Ct. App. 1999).

       "The use of the word 'protect' in the introductory portion [of Restatement (Second) of Torts § 324A] apparently was a typographical error published in the Restatement and should read 'perform.'" Miller v. Bristol-Myers Co., 168 Wis. 2d 863, 883 n.7, 485 N.W.2d 31 (1992).


source: Caselaw Access Project

author: CANE, C. J.

license: Public Domain

text:
    World Wide Prosthetic Supply, Inc., Plaintiff-Appellant, v. Robert J. Mikulsky and Karen Mikulsky, d/b/a Enterprise Machine and Voyager, Inc., Defendants-Respondents.

    Court of Appeals

      No. 00-1751.

      Submitted on briefs March 13, 2001.

    Decided May 15, 2001.

    2001 WI App 133
    (Also reported in 631 N.W.2d 253.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Terry J. Gerbers of Gerbers Law Offices of Green Bay.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Winston A. Ostrow, Donald L. Romundson and Ross J. Nova of Godfrey & Kahn, S.C. of Green Bay.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review granted.

   CANE, C. J.

¶ 1. World Wide Prosthetic Supply, Inc., brings this interlocutory appeal from an order granting a mistrial. The trial court granted the mistrial after World Wide, pursuing a claim for misappropriation of trade secrets, presented evidence that the alleged misappropriator manufactured and marketed a defective product incorporating the claimed trade secrets. This court granted World Wide's petition for leave to appeal to determine whether evidence that Voyager, Inc. marketed the defective product can properly be admitted as evidence of damages in an action under Wis. Stat. § 134.90. We conclude that the evidence is admissible and, therefore, reverse and remand for a new trial consistent with this opinion.

Background

¶ 2. Although the sole issue on appeal presents a question of law, a brief summary of the facts World Wide has alleged is appropriate. World Wide produces and sells endoskeletal prosthetic components for the knee and foot. World Wide entered into a manufacturing arrangement with Robert and Karen Mikulsky, doing business first as Enterprise Machine and later as Voyager, Inc. (collectively, Voyager). Voyager produced light-weight prosthetic components for World Wide that World Wide in turn delivered to a variety of distributors.

¶ 3. World Wide received complaints from its customers that some of the components Voyager manufactured had cracked and broken. World Wide and Voyager disagreed whether this breaking resulted from abuse by the end user or defects in manufacturing. Ultimately, World Wide made arrangements to have its product manufactured by another machinist.

¶ 4. After the relationship between World Wide and Voyager ended, Voyager continued to manufacture the prosthetic components without making any changes to the design or appearance of the components. Voyager marketed the components directly to the prosthetic industry.

¶ 5. World Wide sued Voyager under several legal theories, including misappropriation of trade secrets as defined in WlS. Stat. § 134.90. World Wide alleged that Voyager's continued production of the components constituted misappropriation of a trade secret and that the misappropriation had caused World Wide to lose profits. World Wide claimed that one reason it lost profits was because Voyager's components were defective. World Wide claimed that these defective products, which looked like World Wide's components, caused buyers to lose confidence in World Wide's components, resulting in reduced sales.

¶ 6. At trial, World Wide attempted to introduce evidence that Voyager manufactured and marketed defective products incorporating the claimed trade secrets in support of its claim for damages. World Wide's theory was that although it suffered loss from Voyager's direct competition with World Wide's products, the most substantial financial loss was reduced consumer confidence and lost sales that were caused by Voyager's misappropriation, manufacture and distribution of defective components that looked like World Wide's components.

¶ 7. Voyager objected to this evidence, arguing that infiltrating the market with an inferior substitute is not relevant to a trade secrets claim. Voyager contended that whether an allegedly inferior product damaged World Wide's reputation was relevant only to other legal theories that were not pled or advanced in the litigation.

¶ 8. The trial court initially allowed some testimony that the components were defective, but later reconsidered the issue and concluded that the evidence had been erroneously admitted. Ultimately, the trial court granted Voyager's motion for mistrial and ordered a new trial.

¶ 9. We accepted World Wide's petition for leave to appeal to determine whether evidence that Voyager marketed defective products incorporating the trade secrets can properly be admitted as evidence of damages in an action under Wis. Stat. § 134.90. We conclude that the evidence is admissible and, therefore, reverse the trial court's order and remand the case for a new trial.

DISCUSSION

¶ 10. Resolution of this appeal requires interpretation of Wis. Stat. § 134.90(4), a question of law we review de novo. See Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773 (1989). Section 134.90 was created in 1986 when the legislature passed the Wisconsin version of the Uniform Trade Secrets Act, which created a new definition of trade secret and established remedies available to those injured by the tort of trade secret misappropriation. See id. at 851.

¶ 11. In Minuteman, our supreme court recognized that there are three issues that arise when examining an alleged violation of Wis. Stat. § 134.90: (1) whether the material complained about is a trade secret under § 134.90(l)(c); (2) whether a misappropriation has occurred in violation of § 134.90(2); and (3) if both of these requirements are met, what type of relief is appropriate under § 134.90(3) or (4). See Minuteman, 147 Wis. 2d at 853-54.

¶ 12. Wisconsin does not have a standard jury instruction for WlS. Stat. § 134.90 trade secrets cases. However, the American Bar Association has drafted model jury instructions for use in state trade secrets cases. See Model Jury Instructions, Business Torts Litigation, ABA Section of Litigation (3d ed. 1996). The instructions state that to establish a prima facie case, a plaintiff must prove the following:

(1) that plaintiff possessed a trade secret;
(2) that defendant acquired the trade secret (a) through improper means, (b) through a confidential relationship with plaintiff, or (c) under other circumstances giving rise to a duty not to use or disclose the trade secret without plaintiffs permission;
(3) that defendant used or disclosed the trade secret without plaintiffs permission [practice note omitted]; and
(4) that (a) plaintiff suffered harm as a direct and proximate result of the defendant's use or disclosure of plaintiffs trade secret, or (b) defendant obtained benefit from such use or disclosure.

See id. at § 8.02.

¶ 13. At issue is World Wide's attempt to introduce evidence relevant to the relief afforded by Wis. Stat. § 134.90(4). World Wide seeks to introduce evidence that Voyager's misuse of the trade secret (i.e., manufacture and distribution of defective products) caused World Wide to lose profits. Whether the evidence is admissible depends on whether the proffered testimony is relevant to damages. Thus, in order to determine whether the evidence is admissible, we must decide whether World Wide could potentially recover damages under Wis. Stat. § 134.90(4) that were allegedly caused when Voyager misappropriated, manufactured and distributed defective components. Because neither this court nor the Wisconsin Supreme Court has previously interpreted § 134.90(4), this appeal presents an issue of first impression.

¶ 14. Wisconsin Stat. § 134.90(4) provides:

DAMAGES, (a) Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of a violation of sub. (2) renders a monetary recovery inequitable, a court may award damages to the complainant for a violation of sub. (2). A court may award damages in addition to, or in lieu of, injunc-tive relief under sub. (3). Damages may include both the actual loss caused by the violation and unjust enrichment caused by the violation that is not taken into account in computing actual loss. Damages may be measured exclusively by the imposition of liability for a reasonable royalty for a violation of sub. (2) if the complainant cannot by any other method of measurement prove an amount of damages which exceeds the reasonable royalty.
(b) If a violation of sub. (2) is wilful and malicious, the court may award punitive damages in an amount not exceeding twice any award under par. (a).
(c) If a claim that sub. (2) has been violated is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or a violation of sub. (2) is wilful and deliberate, the court may award reasonable attorney fees to the prevailing party.

¶ 15. World Wide argues that under the plain words of the statute, its damages "may include both the actual loss caused by the violation and unjust enrichment caused by the violation that is not taken into account in computing actual loss." See Wis. Stat. § 134.90(4)(a). World Wide contends that its "actual loss" includes the loss of significant sales and market share caused by Voyager's manufacture and distribution of defective components that was made possible by its misappropriation of World Wide's trade secret.

¶ 16. In response, Voyager contends that Wis. Stat. § 134.90 does not allow recovery of damages based on inferiority. It observes:

World Wide must be claiming that Voyager did something else (besides misappropriate the trade secret) which adversely affected the reputation of products of that kind in the marketplace. If so, the harm results not from any misappropriation of trade secret, but some other "violation" which, if actionable at all, is not actionable under § 134.90, the Uniform Trade Secrets Act.

¶ 17. World Wide is seeking damages commonly awarded in trade secrets cases: lost profits and other damages. See Restatement (Third) of Unfair Competition § 45, cmt. e (1995) (a frequent element of loss resulting from appropriation of a trade secret is the lost profit that the plaintiff would have earned in the absence of the use by the defendant). At issue is whether "actual loss caused by the violation" can include losses that result when a misappropriator uses a product so unsuccessfully that the plaintiffs business suffers.

¶ 18. We conclude that these losses are potentially compensable. In most trade secrets cases, the plaintiff seeks to introduce evidence that the defendant successfully produced and sold a product derived from the plaintiff s trade secret. See, e.g., Mangren Research & Dev. Corp. v. National Chem. Co., 87 F.3d 937 (7th Cir. 1996); In re Innovative Constr. Sys., Inc., 793 F.2d 875 (7th Cir. 1986). This evidence is relevant to whether the "plaintiff suffered harm as a direct and proximate result of the defendant's use." See Model Jury Instructions, supra, at § 8.02.

¶ 19. If evidence of a defendant's successful production and marketing of a product is relevant to damages, it follows that a plaintiff should also be able to present evidence that both its sales and the defendant's sales suffered after the defendant introduced an allegedly inferior product into the market. This evidence is admissible because it is relevant to plaintiffs potential claim for actual loss under WlS. STAT. § 134.90(4), which can include consequential damages.

¶20. "Consequential damages to the plaintiff from loss of the trade secret are recoverable if adequately proven." See 2 Dan B. Dobbs, Law of Remedies § 10.5(3), at 692 (2d ed. 1993). Thus, World Wide can potentially recover those damages that are the natural and proximate result of Voyager's wrongful conduct, which in this case could include losses it suffered because Voyager distributed a defective product incorporating the trade secret. See Madsen v. Threshermen's Mut. Ins. Co., 149 Wis. 2d 594, 606, 439 N.W.2d 607 ( Ct. App. 1989) (consequential damages are the natural and proximate result of an actor's wrongful conduct).

¶ 21. Our conclusion is not unprecedented. In Micro Data Base Sys. v. Dharma Sys., 148 F.3d 649 (7th Cir. 1998), the court considered the defendant's challenge to damages awarded in a trade secrets case. The court concluded that the jury could appropriately award damages for the loss of business the plaintiff experienced when a third party was offended by the plaintiffs self-protection measures that were necessitated by the defendant's misappropriation. The court explained:

The loss of future business with [the third party] was a foreseeable consequence of [the defendant's] misconduct, and so [the plaintiff] was entitled to seek damages for that consequence. Consequential damages, as long as they are reasonably foreseeable, are the norm in tort cases . . . and the misappropriation of a trade secret is a tort.

Id. at 658.

¶ 22. The Micro Data court also predicted a situation similar to that presented here:

It's as if [the defendant], having stolen a program from [the plaintiff], inserted a bug in it as a result of which the program didn't work, and buyers blamed [the plaintiff] and refused to do any further business with it. That would be a consequence of misappropriation, and [the plaintiff] would be entitled to the foreseeable damages flowing from that consequence.

Id. This reasoning is persuasive. World Wide is entitled to present evidence of damages that it alleges are consequences of the misappropriation of its trade secret, including evidence of how Voyager used its trade secret to manufacture components.

¶ 23. Once this evidence is admitted, it will be up to the jury to determine which, if any, of World Wide's losses were "caused by the violation" of WlS. Stat. § 134.90(4). Although questions of causation usually arise in negligence and criminal cases, we see no reason to depart from Wisconsin's unique view of causation in a case not involving negligence or crime. The Wisconsin test for determining causation is whether the conduct at issue was a substantial factor in producing the plaintiffs harm. Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 306, 550 N.W.2d 103 (1998). There may be more than one cause of an injury. Ehlinger v. Sipes, 155 Wis. 2d 1, 13, 454 N.W.2d 754 (1990). The defendant's conduct is a substantial factor in producing the harm if it leads the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense. See id. at 12.

¶ 24. Whether Voyager's alleged misappropriation of trade secrets was a substantial factor in producing World Wide's harm presents a question of fact for the jury. See Cavanaugh, 202 Wis. 2d at 306. Accordingly, evidence of how Voyager used World Wide's trade secret (i.e., to produce and market a defective product) is admissible to prove that Voyager's misappropriation caused World Wide's actual loss, and the extent of that loss.

¶25. Accordingly, we conclude that the trial court erred when it concluded that World Wide could not introduce evidence that the product Voyager allegedly produced and distributed after misappropriating World Wide's trade secret was defective, and that World Wide suffered loss as a result. We conclude that the evidence is admissible to prove that World Wide suffered "actual loss caused by the misappropriation." See Wis. Stat. § 134.90(4). Therefore, we reverse and remand for a new trial consistent with this opinion.

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

      We concluded that granting World Wide's petition for leave to appeal would clarify matters in the trial court and could hasten termination of the litigation. See Wis. Stat. § 808.03(2)(a). All statutory references are to the 1999-2000 version unless otherwise noted.

      We note that the Mikulskys and Voyager, Inc., strenuously contest these allegations. Whether World Wide can establish Voyager misappropriated a trade secret is not an issue before this court; the fact finder will ultimately make that determination. See Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980) (appellate courts are not empowered to find facts). Instead, at issue here is whether World Wide can introduce specific evidence of damages that the fact finder will consider if it concludes there has been a misappropriation.

       World Wide's other legal theories were breach of contract, tortious interference with contract and breach of implied duty of good faith.

       Wisconsin Stat. § 134.90(3) provides for injunctive relief and Wis. Stat. § 134.90(4) provides for damages.

       Although there are no Wisconsin state court cases interpreting Wis. Stat. § 134.90(4), we can look to Uniform Trade Secrets Act decisions in other jurisdictions for guidance. See Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 858, 434 N.W.2d 773 (1989) ("Decisions by other jurisdictions on questions involving the [Uniform Trade Secrets Act] are to be given careful consideration by the courts in Wisconsin."); Wis. Stat. § 134.90(7) ("This section shall be applied and construed to make uniform the law relating to misappropriation of trade secrets among states enacting substantially identical laws.").

        See also Model JURY INSTRUCTIONS, BUSINESS TORTS LITIGATION, ABA Section of Litigation, § 8.06[1] (3d ed. 1996) ("If you find that plaintiff would have realized profits from employing trade secrets in its business that it has lost due to the wrongful conduct of defendant, then you may measure damages by the amount of such lost profits.").

       We recognize, however, that it is difficult to locate trade secrets cases specifically awarding consequential damages for misappropriation of trade secrets, a tort. In Micro Data Base Sys. v. Dharma Sys., 148 F.3d 649, 658 (7th Cir. 1998), Chief Judge Richard Posner observed that the court was "surprised not to have found any case in which consequential damages were awarded" for misappropriation of a trade secret.


author: CANE, C.J. PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael F. Howard, Defendant-Appellant.
    Court of Appeals

      No. 00-2046.

      Submitted on briefs March 13, 2001.

    Decided May 15, 2001.

    2001 WI App 137
    (Also reported in 630 N.W.2d 244.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael F. Howard.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant attorney general.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   CANE, C.J.

¶ 1. Michael Howard appeals pro se from an order denying his Wis. Stat. § 974.06 motion for postconviction relief. Howard argues that: (1) the State breached the plea agreement when the prosecutor recommended consecutive rather than concurrent sentences; and (2) Howard was denied the effective assistance of trial counsel when counsel failed to object to the State's breach. We conclude that the State breached the plea agreement, and that if Howard can establish that his counsel performed deficiently, we can presume he was prejudiced by that deficiency. Accordingly, we reverse and remand so that the trial court can conduct a Machner hearing and determine whether Howard's counsel performed deficiently. If the trial court concludes counsel was deficient, the court should exercise its discretion and select the appropriate remedy for the State's breach.

Background

¶ 2. In an information filed in August 1998, Howard was charged with two counts of second-degree sexual assault of a child in violation of WlS. STAT. § 948.02(2). In a second information filed in September 1998, Howard was charged with four counts of being party to the crime of first-degree recklessly endangering safety while possessing a dangerous weapon in violation of WlS. Stat. §§ 941.30(1) and 939.63(l)(a).

¶ 3. The State and Howard reached a plea agreement pursuant to which the two cases were consolidated for the purpose of entering no contest pleas to five felony counts and sentencing. According to a December 1998 letter to Howard from his attorney, the terms of the agreement pertinent to this appeal included the following:

1. Case No. 98-CF-749:
a. Plead to all four (4) counts of PTAC-First Degree Recklessly Endangering Safety-Felony with weapons enhancers;
2. Case No. 98-CF-720:
Plead to one (1) count of Second Degree Sexual Assault-Felony; P3
b. Dismiss one (1) count of Second Degree Sexual Assault-Felony;
c. State will recommend "concurrent" time on this case.
3. State will agree to recommend no more than 25 years prison, but will wait to make a specific sentencing recommendation until after the PSI is completed.

¶ 4. Counsel for Howard and the State both restated this agreement at the plea hearing. Howard's attorney stated: "And I understand pursuant to the plea agreement that the State would recommend concurrent time on the files and that the State would agree to recommend no more than 25 years' prison with regards to both files, and the defense would be free to argue for an appropriate sentence."

¶ 5. The State confirmed: "[T]he agreement is for him to plead to all counts with the penalty enhancers in 98-CF-749, and that he'll be pleading to one count in 98-CF-720, and we'll dismiss and read in the second count. And the cap will be at 25 years, and that would be concurrent — total of 25 years."

¶ 6. The trial court accepted Howard's no contest pleas to the five charges and found him guilty. The court ordered a pre-sentence investigation and scheduled a sentencing hearing several months later. Howard subsequently changed attorneys, so he had new counsel at the sentencing hearing.

¶ 7. At the May 1999 sentencing hearing, the prosecutor stated his recommendation:

[T]he State is going to recommend that on each of the five counts before the Court this morning that the Court impose a five-year prison sentence on each of those five counts to be served consecutively to each other, for a total penalty of 25 years in prison.

Howard's counsel did not object to this recommendation, despite the fact that the State had recommended that the one count of sexual assault be served consecutively to the four counts of recklessly endangering safety.

¶ 8. Howard's counsel recommended that Howard receive four years consecutive prison time on two counts of recklessly endangering safety, "and then run a period of probation with some hefty imposed but stayed time consecutive to that prison time" on the three remaining counts.

¶ 9. The trial court sentenced Howard to six years in prison on each of the recklessly endangering safety counts and ordered that the four terms be served consecutively. With respect to the sexual assault conviction, the court sentenced Howard to fifteen years in prison, stayed the sentence, and placed Howard on probation for ten years, all consecutive to the four consecutive six-year prison terms.

¶ 10. Howard initiated but did not pursue a direct appeal of his conviction. However, in May 2000, he filed a Wis. Stat. § 974.06 postconviction motion alleging ineffective assistance of counsel. He requested a Machner hearing so that his attorney could explain why she did not object when the prosecutor allegedly breached the plea agreement by recommending that the one count of sexual assault be served consecutively to the four counts of recklessly endangering safety. Howard indicated that if he established ineffective assistance of counsel, he would seek to withdraw his no contest pleas because the State had violated the plea agreement.

¶ 11. Without holding a Machner hearing, the trial court denied Howard's motion. The court concluded that even if Howard's counsel's decision to withhold objection constituted deficient performance rather than strategy, Howard had not been prejudiced by the deficiency, for several reasons. First, the State still recommended no more than twenty-five years total, as per the plea agreement. Second, Howard's counsel recommended a sentence including prison terms on two counts of recklessly endangering safety and a period of probation with a prison term stayed for the other three counts, including the sexual assault, that would run consecutive to the first two sentences. Third, the sentence imposed was consistent with the cap on the plea agreement. The court concluded:

Thus, the total number of years Howard has been sentenced to serve does not exceed the maximum set forth in the plea agreement. Moreover, Howard's sentence is consistent with the result anticipated by the parties had the plea agreement not been slightly altered. Therefore, Howard has failed to establish that his counsel's performance prejudiced his defense.

This appeal followed.

Discussion

¶ 12. When Howard failed to object to the State's alleged breach of the plea agreement at the sentencing hearing, he waived his right to directly challenge the alleged breach of the plea. See Grant v. State, 73 Wis. 2d 441, 447, 243 N.W.2d 186 (1976). Therefore, this case comes to us in the context of an ineffective assistance of counsel claim. We first consider whether the State breached the plea agreement. If there was a material and substantial breach, the next issues are whether Howard's counsel provided ineffective assistance and which remedy is appropriate.

I. Whether breach of the plea agreement is technical, or material and substantial

¶ 13. A criminal defendant has a constitutional right to the enforcement of a negotiated plea agreement. State v. Smith, 207 Wis. 2d 258, 271, 558 N.W.2d 379 (1997). Due process concerns arise in the process of enforcing a plea agreement. Id. Although a defendant has no right to call upon the prosecution to perform while the agreement is wholly executory, once the defendant has given up his "bargaining chip" by pleading guilty, due process requires that the defendant's expectations be fulfilled. Id.; see also Santobello v. New York, 404 U.S. 257, 262 (1971) ("[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.").

¶ 14. When examining a defendant's allegation that the State breached a plea agreement, such as by making a different recommendation at sentencing, it is irrelevant whether the trial court was influenced by the State's alleged breach or chose to ignore the State's recommendation. See United States v. Clark, 55 F.3d 9, 13 (1st Cir. 1995) (A prosecutorial failure to fulfill a promise is not rendered harmless because of judicial refusal to follow the recommendation or judicial awareness of the impropriety.). Thus, the focus of the trial court's analysis for postconviction motions, and for this court on appeal, is whether the State breached the agreement and, if so, whether the breach was material and substantial, rather than whether the trial court was influenced by the breach.

¶ 15. Not all breaches of a plea agreement require a remedy. See State v. Bangert, 131 Wis. 2d 246, 289, 389 N.W.2d 12 (1986). A defendant is not entitled to relief when the breach is merely a technical one rather than a substantial and material breach of the agreement. See id. at 289-90. A breach must deprive the defendant of a material and substantial benefit for which he or she bargained. Smith, 207 Wis. 2d at 272. When the facts are undisputed, the question whether the prosecutor's conduct breached the terms of the plea agreement is a question of law that we review de novo. Id. at 266.

¶ 16. Here, the terms of the plea agreement were clear. Howard agreed to plead no contest to four counts of recklessly endangering safety and one count of sexual assault. The State agreed to recommend no more than twenty-five years prison and concurrent time on the sexual assault case. The parties agree that the prosecutor violated the plea agreement when he recommended that the sexual assault sentence be served consecutively to the other sentences, instead of concurrently with them. At issue is whether this violation was "technical" or "substantial and material."

¶ 17. The State argues that because the prosecutor's recommendation for a total sentence of twenty-five years for the five convictions complied with the plea agreement that the prosecutor recommend no more than twenty-five years in prison for all the counts, the recommendation that the sexual assault sentence be consecutive rather than concurrent constituted only a technical violation of the agreement. We disagree.

¶ 18. Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning the length of time to be served on each count. However, whether sentences are to be concurrent or consecutive is also extremely important. The designation of concurrent or consecutive time can affect the actual amount of time served, the application of pre-sentence credit, parole eligibility dates, the date a defendant is allowed access to rehabilitative services, and other factors. See, e.g., State v. Tuescher, 226 Wis. 2d 465, 469, 595 N.W.2d 443 (Ct. App. 1999) (If the sentences are concurrent, time spent in pre-sentence custody is credited toward each sentence, but if the sentences are consecutive, time in pre-sentence custody is credited toward only one sentence.). A recommendation of concurrent sentences can also send a signal to the trial court that the agreement contemplates a lesser sentence than one where consecutive sentences are recommended.

¶ 19. Thus, there are a variety of important reasons why a defendant may choose to negotiate for a promise to recommend concurrent time. We conclude that where a plea agreement undisputedly indicates that a recommendation is to be for concurrent sentences, an undisputed recommendation of consecutive sentences that is not corrected at the sentencing hearing constitutes a material and substantial breach of the plea agreement as a matter of law.

¶ 20. It is undisputed that contrary to the plea agreement, the prosecutor recommended that the sexual assault sentence be served consecutively to the other sentences. We conclude that the State significantly and materially breached the plea agreement. That the breach of the agreement may have been inadvertent does not lessen its impact; the defendant is still entitled to a remedy for the breach. See Santobello, 404 U.S. at 262.

II. Ineffective assistance of counsel

¶ 21. It is undisputed that Howard did not object to the State's breach of the plea agreement at the sentencing hearing, thereby waiving his right to directly challenge the breach of the plea. See Grant, 73 Wis. 2d at 447. Therefore, he is entitled to a remedy for the State's substantial and material breach only if he was provided ineffective assistance of counsel. The failure of Howard's counsel to timely object to the prosecutor's breach is the basis for the ineffective assistance claim here.

¶ 22. The right to effective assistance of counsel derives from the Sixth Amendment to the United States Constitution and art. I, § 7, of the Wisconsin Constitution. Both provisions grant the right to a fair trial, including the assistance of counsel in criminal cases. Strickland v. Washington, 466 U.S. 668, 684-86 (1984). There are two components to a claim of ineffective assistance of counsel: a demonstration that counsel's performance was deficient, and a demonstration that such deficient performance prejudiced the defendant. Id. at 687. The defendant has the burden of proof on both components. Id. at 688. A court need not address both components of this inquiry if the defendant does not make a sufficient showing on one. See id. at 687.

¶ 23. A trial court's ineffective assistance of counsel analysis involves mixed questions of law and fact. State v. Scott, 230 Wis. 2d 643, 656, 602 N.W.2d 296 (Ct. App. 1999). The trial court's factual findings will not be reversed unless they are clearly erroneous; however, issues bearing on whether trial counsel's conduct was deficient ánd prejudicial are questions of law that this court reviews de novo. Id. at 657.

¶ 24. The trial court in this case chose to address the prejudice prong of the two-part Strickland analysis first. The court concluded that Howard had not been prejudiced, and accordingly did not consider the deficiency prong. Like the trial court, we will begin our analysis with the prejudice prong.

A. Prejudice to defendant

¶ 25. In certain instances, prejudice is presumed if deficient performance is proven. See Smith, 207 Wis. 2d at 278. In Smith, our supreme court concluded that when a prosecutor materially and substantially breaches a plea agreement, the breach of the State's agreement always results in prejudice to the defendant. Id. at 281. The court explained:

The breach of a material and substantial term of a plea agreement by the prosecutor deprives the defendant of a sentencing proceeding whose result is fair and reliable. Our conclusion precludes any need to consider what the sentencing judge would have done if the defense counsel had objected to the breach by the district attorney. Rather, our conclusion is premised on the rule of Santobello, that when a negotiated plea rests in any significant degree on a promise or agreement of the prosecutor, such promise must be fulfilled.

Id.

¶ 26. The State does not contest Smith's holding, acknowledging in its brief: "Where the attorney is guilty of deficient performance in failing to object to a substantial and material breach of the plea agreement, the defense is automatically prejudiced." See id. at 281-82. Accordingly, if Howard is able to establish that counsel's performance was deficient, prejudice will be presumed. See id.

B. Deficient performance

¶ 27. To prove deficient performance, the defendant must establish that his or her counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 273. The defendant must overcome a strong presumption that his or her counsel acted reasonably within professional norms. Id.

¶ 28. In Smith, the court concluded that counsel provided deficient performance by failing to object when the State violated the plea agreement, in part because the State conceded that counsel had acted defi-ciently. See id. at 274-75. However, the court noted:

In light of the State's concession of deficient performance as well as our own conclusion on deficient performance, no Machner hearing is necessary given the facts of this case.... In Machner, the court ruled that in order to determine on appeal whether the attorney's action was the result of deliberate trial strategy or incompetence, trial counsel's testimony as to his or her reasoning must be preserved at a hearing.

Id. at 275 n.11. The court also recognized:

There may be some circumstances in which the State argues that defense counsel's failure to object to a recommendation that causes a material and substantial breach of the plea agreement was a strategic decision by the defense counsel. In such cases, postconviction counsel would have to meet his or her burden at a Machner hearing.

Id. at 281 n.13.

¶ 29. Unlike Smith, the State in this case has not conceded that counsel acted deficiently. Instead, the State suggests that Howard's counsel may have made the strategic decision to not object. The trial court, having concluded that Howard was not prejudiced even if counsel had acted deficiently, did not conduct a Machner hearing. We have concluded prejudice can be presumed if Howard establishes deficient performance. Accordingly, a Machner hearing is necessary so that Howard's counsel can explain whether her failure to object was based ón strategy. Because the trial court denied Howard's request for a Machner hearing, we reverse and remand for a Machner hearing on the issue of counsel's alleged deficient performance.

III. Remedies for State's breach of plea agreement

¶ 30. On remand, the trial court will determine whether Howard's counsel acted deficiently. We have already concluded that the State materially and substantially breached its plea agreement and that counsel's performance, if deficient, was prejudicial. Accordingly, if the trial court determines that Howard's counsel acted deficiently, it will need to consider the appropriate remedy.

¶ 31. In Santobello, the United States Supreme Court considered the appropriate relief where the State breached a plea agreement. See id. at 262-63. The court concluded:

[W]e conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty.

Id.

¶ 32. In the thirty years since Santobello, numerous courts have resolved plea breaches by the State by selecting the appropriate remedy, given the circumstances of the individual case. For example, in Clark, the court observed:

In Santobello, the Supreme Court indicated that there are two ways to remedy the government's breach of a plea agreement: giving the defendant "the opportunity to withdraw his plea of guilty," or "specific performance of the agreement."... In unusual circumstances, we have also crafted other remedies. See Correale [v. United States], 479 F.2d [944,] 950 [(1st Cir. 1973)] (using equitable powers to remand with instructions to impose a specific sentence because such sentence was the "only just remedy and the only one which could now approximate specific enforcement of the agreement").

Id. at 14. The court stated that the choice of remedy is normally left to the discretion of the sentencing court, but recognized that there is a preference for specific performance of the agreement by resentencing by a different judge rather than vacating pleas. See id. Accordingly, the court held that if the defendant is successful on appeal and seeks only specific performance by resentencing, then the appellate court can simply order resentencing by a different judge. See id.

¶ 33. Sentencing courts considering remedies for the State's breach of the plea agreement consider "the egregious or minimal nature of the breach, whether much time has passed which would make a vacated plea and a new trial an onerous burden on the parties, and whether the defendant served any or all of the time on the sentence." See Jay M. Zittner, Choice of Remedies Where Federal Prosecutor Has Breached Plea Bargain—Post-Santobello v. New York, 120 A.L.R. Fed 501, 501 (1994). The Eighth Circuit Court of Appeals explained: "[A] trial court must examine the equities of the particular case, considering the prejudice to the defendant, conduct of the government, and the public interest. ... The most important factor in this decision is prejudice to the defendant." United States v. McGovern, 822 F.2d 739, 746 (8th Cir. 1987).

¶ 34. Our supreme court has not specifically addressed whether the trial court has discretion to select the appropriate remedy and the factors that should be considered. In Bangert, the court's language suggested that where a substantial and material breach occurred, the defendant's request to withdraw the plea should be permitted. The court stated:

A breach of a plea agreement does not give rise to a per se right to withdraw a plea. A material and substantial breach, however, amounts to a manifest injustice and would result in the vacating of the plea agreement and the withdrawal of the plea of no contest.

Id. at 289. However, the court concluded that there had been no material and significant breach of the plea agreement, and therefore did not apply a remedy. Id. at 289-90.

¶ 35. In Smith, the defendant sought only to be resentenced. Accordingly, after concluding that Smith was entitled to a remedy for the State's breach, the court granted his request for a new sentencing hearing conducted in accordance with the terms of the plea agreement. See id. at 282.

¶ 36. Our reading of Bangert and Smith leads us to conclude that the remedies and procedures outlined in Santobello are consistent with Wisconsin law. Specifically, the sentencing court has discretion to determine the appropriate remedy for a breach. See Kingsley v. United States, 968 F.2d 109, 113 (1st Cir. 1992). If the trial court determines that resentencing is appropriate, the court should order resentencing by a different judge. See Santobello, 404 U.S. at 262-63.

¶ 37. The choice of remedy is not up to the defendant; it rests with the court. See Kingsley, 968 F.2d at 113. However, if the defendant seeks only specific performance by resentencing, then the court can simply order resentencing by a different judge. See United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990). When selecting a remedy, sentencing courts should bear in mind that specific performance, the less extreme remedy, is preferred. See Kingsley, 968 F.2d at 113.

Conclusion

¶ 38. We conclude that the State materially and substantially breached the plea agreement when it recommended that Howard's sentence for sexual assault be served consecutive to rather than concurrent with his other sentences. We also conclude that if Howard can establish that his counsel performed deficiently, we can presume he was prejudiced by that deficiency.

Accordingly, we reverse and remand so that the trial court can conduct a Machner hearing and determine whether Howard's counsel performed deficiently. If the trial court concludes counsel was deficient, the court should exercise its discretion and select the appropriate remedy for the State's breach.

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

PETERSON, J.

¶ 39. (dissenting). The plea bargain in this case called for a sentencing recommendation by the State of no more than twenty-five years. The State recommended twenty-five years. The recommendation on one of the five felonies was to have been for time concurrent to the other four felonies. The State, however, recommended consecutive time. Even though the State recommended no more actual time than agreed, the majority concludes the State breached the agreement solely because it recommended consecutive rather than concurrent time on the one felony. I respectfully disagree.

¶ 40. As the majority correctly recognizes, Howard is not entitled to relief unless the breach of the plea agreement was material and substantial. See State v. Bangert, 131 Wis. 2d 246, 289, 389 N.W.2d 12 (1986). This requires that Howard was deprived of a material and substantial benefit for which he bargained. See State v. Smith, 207 Wis. 2d 258, 272, 558 N.W.2d 379 (1997).

¶ 41. The majority then states that the designation of concurrent or consecutive time "can" affect the actual amount of time served, the application of pre-sentence credit, parole eligibility dates, the date a defendant is allowed access to rehabilitative services, and other factors. It observes that there are a wide variety of reasons why a defendant may choose to negotiate for a promise to recommend concurrent time.

¶ 42. I agree with the opinion up to this point. However, the majority then jumps to the conclusion that the failure to recommend the concurrent time on the one felony sentence amounts to a material and substantial breach, apparently as a matter of law.

¶ 43. I cannot go that far. There is nothing in this record to establish that a recommendation for concurrent time was a material and substantial benefit to Howard. There is nothing to show, for example, that Howard believed such a recommendation would actually affect the amount of time served, the application of pre-sentence credit, the determination of his parole eligibility date, or the date he was allowed access to rehabilitative services. In short, there is nothing to show that Howard relied, in any degree, on the concurrent promise. Without this proof, we cannot say, in the words of Santobello, that Howard's plea rested "in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration . . . Santobello v. New York, 404 U.S. 257, 262 (1971).

¶44. For me the bottom line is that Howard received the essence of what he bargained for: a recommendation of twenty-five years maximum. Without proof that he relied in some important way on the concurrent part of the agreement, I view the State's breach as technical, not material and substantial. I would affirm.

      A11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

         See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

       Although Howard did not pursue his direct appeal, the State does not contest Howard's right to use a Wis. Stat. § 974.06 motion to seek plea withdrawal based on ineffective assistance of counsel and breach of the plea agreement.

       The court implied that the 15 years imposed and stayed did not count toward the 25-year cap in the plea agreement, because Howard received 24 years in prison for the first four counts, nearly exhausting the 25-year cap.

       Neither party disputes the State's right to recommend that the four sentences for recklessly endangering safety run consecutively to one another.

       It may be that a defendant will never realize the potential advantages that can inure to one serving a concurrent as opposed to a consecutive sentence. Bargaining for a recommendation of concurrent sentences is nonetheless important because a concurrent sentence puts the defendant in a position to realize those advantages.

       In State v. Knox, 213 Wis. 2d 318, 322-23, 570 N.W.2d 599 (Ct. App. 1997), we concluded that where the prosecutor misstated the plea agreement, the defendant promptly objected, and the prosecutor quickly acknowledged and corrected the misstatement, the breach was not substantial. Knox is distinguishable from this case because here the prosecutor did not correct his misstatement.

       Wisconsin's previous cases on plea agreement breaches by the prosecution have not explicitly stated that resentencing should take place before a different judge. As a practical matter, defendants who were successful on appeal have had the option of seeking a substitution of judge for resentencing pursuant to Wis. Stat. § 971.20(7). However, Santobello v. New York, 404 U.S. 257, 263 (1971), clearly states that resentencing should take place before a different judge. Accordingly, whether it is the trial court or the appellate court that determines resentenc-ing is appropriate, the court should order resentencing before a different judge.

       In the event it is the appellate court that first concludes a remedy is necessary, the appellate court can choose to simply order resentencing by a different judge as opposed to remanding to the sentencing judge for a full consideration of possible remedies. See United States v. Clark, 55 F.3d 9, 14-15 (1st Cir. 1995).

       The Kurkculer court, considering a remedy for the State's breach, discussed whether it could, over the defendant's objection, vacate his guilty plea. The court concluded:
      Specific performance ... is a lesser burden on the government and defendant. Further, permitting a judge to vacate a plea over defendant's objection on breach by the prosecution allows the government to back out of its agreement at will and obtain a new trial. Given nothing more than the prosecutor's breach, the circumstances do not "require" a new trial.

        United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990).

       We note for the benefit of Howard, who is proceeding pro se, that defendants should carefully consider the remedies they seek, preferably with the advice of counsel. A defendant who successfully withdraws his or her pleas no longer has the benefit of any concessions or dismissals initiated by the State pursuant to the plea bargain. In the event a defendant is granted resentencing before a different judge, there is no guarantee the sentence will be more favorable. In Clark, the court vacated Clark's 188-month sentence and granted his motion for resentencing after concluding that the State had breached the plea agreement. See id., 55 F.3d 9. A second judge sentenced Clark to 223 months in prison, and this sentence was affirmed on appeal. See United States v. Clark, 84 F.3d 506 (1st Cir. 1996).


author: ANDERSON, J.

text:
    Peace Lutheran Church and Academy, Plaintiff-Appellant, v. Village of Sussex and Board of Fire Appeals, Defendants-Respondents.
    Court of Appeals

      No. 00-2328.

      Submitted on briefs March 9, 2001.

    Decided May 16, 2001.

    2001 WI App 139
    (Also reported in 631 N.W.2d 229.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí Andrew J. Zbaracki of Tikal-sky, Raasch & Tikalsky, Waukesha.
    On behalf of the defendants-respondents, the cause was submitted on the brief of H. Stanley Riffle and Julie A. Aquavia of Arenz, Molter, Macy & Riffle, S. C., Waukesha.
    Before Brown, P.J., Nettesheim and Anderson, JJ.
   ANDERSON, J.

¶ 1. Peace Lutheran Church and Academy (Church) seeks a variance from a requirement of the Village of Sussex's Fire Prevention Code that an automatic fire sprinkler system be installed in its original building. The Church contends that such a requirement is violative of the freedom of worship and freedom of conscience because it is a burden on sincerely held religious beliefs. We conclude that the decision of the Village's Board of Fire Appeals does not burden any sincerely held religious belief since there is no evidence of the basic tenets, principles or dogmas of the Church.

¶ 2. The Church raises two other challenges to the decision of the Board. We conclude that the decision is the result of a rational decision-making process and is reasonable. Finally, we conclude that the written findings of the Board are adequate. Therefore, we affirm.

BACKGROUND

¶ 3. The original church building was constructed in 1965. At that time, automatic fire sprinklers were not required by the Village's Fire Prevention Code. In 1993, the Village granted the Church's petition for a change of use in the building to include a preschool. Although a sprinkler system could have been required, the Village gave the Church a variance and allowed it to install smoke detectors. A second change in use was granted by the Village in 1995. When the Church wanted to start a school, the Village again did not require the installation of a sprinkler system. In 1999, a school building was constructed and attached to the original building by a breezeway. The school building has an integrated sprinkler system. As a condition of approval for the construction of the school, the Village required the retrofitting of a sprinkler system in the original building.

¶ 4. The original building is 9300 square feet and includes a church sanctuary and administrative offices. The building is set on a concrete slab. The walls are primarily cinder block with a stone facade. Exposed load bearing beams, made of wood, are used throughout the sanctuary and administrative offices and are a part of the aesthetic decor of the building. The automatic sprinkler system that is required by the Village will use two and one-half inch pipes. The pipes cannot be hidden and will go around the exposed load bearing beams because drilling through the beams will compromise their structural integrity. In the sanctuary, the pipes will have to be installed in the open areas of the ceiling and around the wall above the pulpit and into the chancel and branch lines will cross over the chancel. In addition, in the hallway and narthex of the building, the pipes will have to be installed around low beams.

¶ 5. The installation of a sprinkler system in the original building is mandated by the Village's Fire Prevention Code that is applicable to new and existing structures. Village of Sussex Municipal Code § 5.15(3)(a). The relevant portions of the code require that

every building constructed, every building structurally altered, every building remodeled, or every building whose use has changed . . . shall have an approved automatic sprinkler system installed and maintained when occupied in whole or in part as follows:
(a) All Factories, Office, and Mercantile Buildings (ILHR Chapter 54 Occupancies).
1. Throughout Fire-Resistive buildings exceeding 7,500 square feet gross area or exceeds one level.
2. Throughout Non-Fire-Resistive buildings exceeding 5,000 square feet gross area or exceeds one level.
(c) All Assembly Halls other than theaters (ILHR Chapter 55 Occupancies).
1. Throughout Fire-Resistive buildings exceeding 2,000 square feet gross area or exceeds one level.
2. Throughout all Non-Fire-Resistive buildings.

Id. at § 5.16(2).

¶ 6. The Church sought a variance from the requirement to install an automatic sprinkler system from the Village fire chief. The chief may grant a variance if it is not contrary to the public interest and "when, owing to special conditions, a literal enforcement of the Fire Prevention Code will result in practical difficulties or unnecessary hardship, provided the spirit and purpose of the Fire Prevention Code shall be observed, public safety, welfare, and justice secured." Id. at §5.15(10). In lieu of an automatic sprinkler system, the Church proposed to install smoke detectors, emergency horns and alarm pull switches in the original building. The Church sought the variance because of the belief that it would be disruptive of their services.

As Lutherans, we believe that God is present with us in the Divine Service. The area of the chancel is holy ground. We bow before entering the chancel and kneel before the altar to receive the Body and Blood of Christ. Because of this, the retrofitted sprinkler system, by its very presence, will be in competition with the sacred appointments in the chancel. This can also be visually disturbing to those who are worshiping. By enforcing strict compliance of 5.16(2) of the Fire Prevention Code, the Village government is dictating how we must worship and what items we must have in our sacred space. Such an intrusion by the government, no matter the motive, is in violation of constitutional guarantees under the First Amendment with respect to freedom of worship.

¶ 7. In denying the request, the chief wrote that he believes sprinkler systems are justified because they are proven to protect the lives and safety of the Village's citizens, children and responding fire fighters. He noted a recent rash of church fires throughout the United States and expressed his opinion that sprinkler systems are the "most effective way to prevent loss of life and property in a structure fire."

¶ 8. The Church filed an appeal with the Village's Board of Fire Appeals. Id. at § 5.15(11). Over the course of two public hearings, the Board heard presentations from representatives of the Church and the chief. The first meeting was adjourned and the chief was directed to explore alternatives to the sprinkler system. At the second meeting, the Board heard a presentation on alternatives and further presentations from the Church and the chief. The Board voted unanimously to deny the variance. The Board's findings of facts, conclusions of law and determination will be discussed in more detail below.

¶ 9. The Church filed a petition for a writ of certi-orari with the circuit court. The Church argued that requiring a sprinkler system denied its members the freedoms of worship and conscience guaranteed by the Wisconsin Constitution. The Church also argued that the Board's refusal to grant a variance was arbitrary and reflects the Board's will and not its judgment. The circuit court upheld the Board's denial of a variance, finding that the requirement for a sprinkler system did not burden sincerely held religious beliefs and that the Board's decision was well-considered and supported by the evidence. The Church appeals.

STANDARD OF REVIEW

¶ 10. In a certiorari action, the appellate court conducts a de novo review of the Board's and not the circuit court's decision. Schroeder v. Dane County Bd. of Adjustment, 228 Wis. 2d 324, 330, 596 N.W.2d 472 ( Ct. App.), review denied, 228 Wis. 2d 176, 602 N.W.2d 761 (Wis. July 23, 1999) (No. 98-3615). Our scope of review is limited to four questions: "(1) whether [the Board] stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable, representing its will instead of its judgment; and (4) whether the evidence was such that [the Board] might reasonably have made the determination under review." Id. at 330-31.

¶ 11. The first question requires us to determine whether the Board acted within the scope of its powers. The second requires this court to review the Board's procedure in light of the applicable statutes and due process requirements. State v. Goulette, 65 Wis. 2d 207, 215, 222 N.W.2d 622 (1974). As to the third question, it is established that a board's decision is arbitrary and represents its will if it has acted without a rational basis or the exercise of discretion. Van Ermen v. DHSS, 84 Wis. 2d 57, 64-65, 267 N.W.2d 17 (1978). The fourth question has been compared to the substantial evidence test under judicial review of administrative proceedings. State ex rel. Beierle v. Civil Serv. Comm'n, 41 Wis. 2d 213, 218, 163 N.W.2d 606 (1969). In a review of a decision on a writ of certiorari, there is a presumption that the board acted according to law and the official decision is correct; the weight and credibility of the evidence cannot be assessed. State ex rel. Harris v. Annuity & Pension Bd., 87 Wis. 2d 646, 652, 275 N.W.2d 668 (1979).

DISCUSSION

¶ 12. In this appeal, the Church contends that the Board of Fire Appeals failed to act according to a correct theory of law. Specifically, the Church criticizes the Board for making unreasonable value judgments as to the sincerity of the Church members' religious beliefs and for failing to properly apply the law to a constitutional challenge to the requirement to retrofit the church with a sprinkler system. The Church also contends that the action of the Board was arbitrary because it had no rational basis for its decision. Finally, the Church argues that the Board failed to make complete findings.

1. Correct Theory of Law

¶ 13. The Church contends that the Village failed to apply the correct standard for the Church's constitutional challenge to the requirement that it install a sprinkler system. The Church claims that the Village's requirements place an undue burden on the freedom of worship and the freedom of conscience. The Church faults the Village for finding that the challenge was based on aesthetic displeasure rather than sincerely held religious beliefs. The Church insists that the installation of a sprinkler system will disrupt religious services by "desecrating the sanctuary with large pipes and sprinkler nozzles throughout." The Church maintains that it has a right to worship in a space designed around its expressions of faith and the Village does not have a right to put its value judgments on the Church's religious beliefs.

¶ 14. We will analyze the Church's argument using article I, section 18 of the Wisconsin Constitution:

Freedom of worship; liberty of conscience; state religion; public funds. . . . The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.

We recognize that our state constitution offers more expansive protections for freedom of conscience than those offered by the Free Exercise Clause of the First Amendment to the United States Constitution. Jackson v. Benson, 218 Wis. 2d 835, 877 n.21, 578 N.W.2d 602 (1998); State v. Miller, 202 Wis. 2d 56, 64, 549 N.W.2d 235 (1996). As the Wisconsin Supreme Court has noted, the drafters of our constitution benefited from the experience of states admitted earlier to the Union and provided a comprehensive ban on discrimination against any religious group within the state. Miller, 202 Wis. 2d at 65.

¶ 15. We will apply the compelling state interest/least restrictive alternative test in reviewing the Church's claim. Id. at 66.

[U]nder this analysis, the challenger carries the burden to prove: (1) that he or she has a sincerely held religious belief, (2) that is burdened by application of the state law at issue. Upon such proof, the burden shifts to the State to prove: (3) that the law is based on a compelling state interest, (4) which cannot be served by a less restrictive alternative.

Id. This test is applied strictly, regardless of whether the burden created by law is incidental or significant. Kollasch v. Adamany, 99 Wis. 2d 533, 550, 299 N.W.2d 891 (Ct. App. 1980), rev'd on other grounds, 104 Wis. 2d 552, 313 N.W.2d 47 (1981). It is not enough for the Church to show that the application of the Village's Fire Prevention Code burdens it in some way; the burden must be related to the exercise of a religious belief. Id.

¶ 16. The first prong of the analysis requires us to determine whether the Church has a sincerely held religious belief. In Miller, the State conceded that the respondents were members of the Old Order Amish and "live 'separate and apart from the world' in a community in which religion permeates every aspect of their lives." Miller, 202 Wis. 2d at 69. There is no such concession from the Village that the Church holds sincere religious beliefs about what may be inside of their area of worship. In testimony and a written submission, the Church deacon stated that the membership believes that God is present during church services and the chancel is holy ground. While expressing the opinion that the sprinkler system would be in competition with the sacred appointments inside the church, the deacon presented no evidence that basic tenets, principles or dogmas of the Church prohibit the presence of secular items in the worship space.

¶ 17. In State v. Yoder, 49 Wis. 2d 430, 182 N.W.2d 539 (1971), a case challenging the applicability of Wisconsin's compulsory education law to the Amish, expert testimony was presented on the religious beliefs and tenets of the Old Order Amish. Id. at 435-36. In Kollasch, the court had evidence that included the origins of the order, the original rule for those who wished to join the order and the specific rules governing how members of the order were to treat guests. Kollasch, 99 Wis. 2d at 538-40, nn.2-4. In the present case, there are only broad statements from the deacon of the Church, but no evidence of which of the Church's basic tenets, principles or dogmas support the statements.

¶ 18. In addition to the pastor and deacon, two members of the Church were present at the first meeting of the Board of Fire Appeals. Lee Weber stated that the sprinkler system "is aesthetically not what he is accustomed to." He asked the Board to look at the Church's point of view for its worship area. Wayne Loos declared that the sprinkler system would be an intrusion on the worship services and an eyesore and would interrupt his personal worship. Both of the members stated that the congregation did not want the sprinkler system "if not absolutely necessary," but did acknowledge that the sprinkler system was not impractical.

¶ 19. The presentations by the representatives of the Church do not provide enlightenment on the question of whether there are sincerely held beliefs that proscribe secular items within the church sanctuary. Without evidence of the Church's basic tenets, principles or dogmas, it is impossible to establish how the application of the Village's Fire Prevention Code would create a substantial burden on worship in the church. At best, the installation of a sprinkler system would prove distracting and aesthetically displeasing to the members of the Church.

¶ 20. Without evidence that the Church has sincerely held religious beliefs about secular items, such as the sprinkler system, being visible in its worship space, we are unable to determine whether those beliefs are burdened by the application of the fire code. Under other circumstances, we have pointed out that the application of civil law requirements to religious beliefs does not always result in a burden on those beliefs.

Free exercise of religion does not necessarily mean the right freely to act in conformity with a religion. "The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires." The United States Supreme Court has "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Nor has the United States Supreme Court ever held "that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation."

Lange v. Lange, 175 Wis. 2d 373, 383-84, 502 N.W.2d 143 (Ct. App. 1993) (citations omitted).

¶ 21. Because the Church has failed to prove that there is a sincerely held religious belief that is substantially burdened by the application of the Village's Fire Prevention Code, our analysis could stop here. However, we believe that judicial completeness requires us to briefly address the last two prongs of the compelling state interest/least restrictive alternative test: that the law is based upon a compelling state interest which cannot be served by a less restrictive alternative.

¶ 22. The requirement that a sprinkler system be installed in the original building is based on a compelling Village interest: the saving of lives and preservation of property. The fire chief testified before the Board that a sprinkler system has a proven track record in saving lives and property. Because the Village has a volunteer fire department, with no on-duty fire fighters, a sprinkler system provides an immediate response to a fire and benefits the volunteer fire fighters and the Church by preventing the rapid spread of a fire. The evidence presented to the Board proved that there were no alternative fire suppression systems that could be installed instead of the sprinkler system. Additionally, the alternatives proposed by the Church — smoke detectors, emergency horns and alarm pull boxes — do not operate as a fire suppression system benefiting the occupants of the building and the volunteer fire fighters. Therefore, any burden the Fire Prevention Code may have on the sincerely held beliefs of the Church is outweighed by the compelling interest in preserving life and property, and this compelling interest cannot be met by any less restrictive alternative.

2. Arbitrary Action

¶ 23. The Church argues that there is no rational basis for the Board's decision. It complains that the Board failed to give serious consideration to the building components of the structure or the benefits of the alternatives it suggested. The Church also contends that the Board had no guidelines under which it could determine when a variance to the fire code would be appropriate.

¶ 24. We have previously explained that

[a]n arbitrary action or decision is "one that is either so unreasonable as to be without a rational basis, or one that is the result of an unconsidered, willful or irrational choice of conduct — a decision that has abandoned the 'sifting and winnowing' process so essential to reasoned and reasonable decisionmaking." Generally, we have equated the term "unreasonable" with irrational or lacking "a rational basis."

Glacier State Distrib. Serv., Inc. v. DOT, 221 Wis. 2d 359, 369-70, 585 N.W.2d 652 (Ct. App. 1998) (citations omitted). We determine whether the Board's action had a rational basis, not whether the Board acted on the basis of factual findings. Rational choices can be made in a process that considers opinions and predictions based on experience. Sterlingworth Condo. Ass'n v. DNR, 205 Wis. 2d 710, 730, 556 N.W.2d 791 (Ct. App. 1996).

¶ 25. When considering a variance request, the Board is to make a discretionary call on a case-by-case basis as to whether, and if so by how much, the Fire Prevention Code is to be relaxed. See Miswald v. Waukesha County Bd. of Adjustment, 202 Wis. 2d 401, 412, 550 N.W.2d 434 (Ct. App. 1996). The Board is guided in its reasoning process by the Fire Prevention Code and the requirement that a variance can only be granted if it is not contrary to the public interest, and "when, owing to special conditions, a literal enforcement of the Fire Prevention Code will result in practical difficulties or unnecessary hardship, provided the spirit and purpose of the Fire Prevention Code shall be observed, public safety, welfare, and justice secured." VILLAGE OF Sussex Municipal Code § 5.15(10).

¶ 26. Our review of the record made before the Board convinces us that the refusal to grant a variance was not arbitrary, oppressive or unreasonable. The Board considered the Church's request over two meetings. The Church's pastor and deacon made a presentation on why a variance from the requirement to install a sprinkler system should be granted. The Board members and the Church's representatives engaged in a wide-ranging exchange in which the proposed sprinkler system and its interplay with the interior architecture of the Church were discussed. The two prior changes to the old building were discussed, as well as the reason why the Church was given variances from the requirement to install a sprinkler system when the changes were approved.

¶ 27. The fire chief made a presentation in support of his decision not to grant a variance. He told the Board that he believed that aesthetics was the reason that the Church was seeking a variance. He explained to the Board that another church in the Village retrofitted its worship space with a sprinkler system without seeking a variance. The chief told the Board that the Church's proposed alternatives were fire detection and warning systems and were not equivalent to a fire suppression system. He pointed out that there were alternative fire suppression systems — mist, haylon or carbon dioxide — that the Church could explore, as well as less obtrusive sprinkler systems. The chief stated that the sprinkler system has a proven track record; that it is required in the Church because of all the interior wood; and that because the fire department depends upon volunteers, it would benefit the fire fighters.

¶ 28. The fire chief was questioned about the variances granted to the Church in the past. He responded that he was not the fire chief when those variances were granted. When asked whether he would have granted the variances, the chief said he would not have. The chiefs primary concern was that the original building would be used for classes and he considered it an educational facility. Before the meeting was adjourned, the Board directed the fire chief to meet with the Church to explore viable alternatives.

¶ 29. At the reconvened meeting, the Board reviewed alternatives outlined in a report prepared by a member of the fire department. After final presentations by the Church's deacon, the Board debated the request in an open session. One member of the Board expressed the opinion that if a variance was granted for aesthetics, no churches in the Village would have to be equipped with sprinkler systems because there would be pipes in the sacristy. Another member concluded that it would not be impractical for the Church to install a sprinkler system. While expressing general reservations about denying the variance, the final member of the Board joined the other two members in voting against the Church's request.

¶ 30. The Board reduced its decision to written findings of fact, conclusions of law and determination that closely mirrors its debate and accurately reflects the record of the two meetings. The Board set forth the reasons of the Church for requesting the variance. The Board relied upon the fire chiefs belief that "sprinkler systems have a demonstrated ability to save property and to save lives, and also to protect the lives and well-being of firefighters who respond to fires." The Board found that there were no structural impediments inside of the church; therefore, it was not impossible to install the sprinkler system. The Board found that while the sprinkler system would be visible, it was not impractical to install. Finally, the Board found that to grant the variance would be contrary to the public interest as well as the spirit and purpose of the Fire Prevention Code. As our discussion demonstrates, the Board's decision is reasonable and has a rational basis.

3. Sufficiency of Board's Findings

¶ 31. The Church maintains that the Board failed to make written findings on the constitutional issues it raised in requesting the variance. The Church argues that Edmonds v. Board of Fire & Police Commissioners, 66 Wis. 2d 337, 224 N.W.2d 575 (1975), requires specific findings addressing each issue of law presented. It contends that the failure of the Board to address the constitutional issues leaves this court with insufficient information to decide if the Board acted in a reasonable manner.

¶ 32. Edmonds does stand for the proposition that "as a matter of due process and sound administrative procedures ... an administrative agency is required to make definite and certain findings of fact, together with its conclusions of law." Harris, 87 Wis. 2d at 660. In Harris, the Wisconsin Supreme Court qualified the obligation Edmonds imposes upon agencies and Boards to memorialize their determinations.

There is no requirement that the administrative agency indulge in the elaborate opinion procedure of an appellate court. It is sufficient if the findings of fact and conclusions of law are specific enough to inform the parties and the courts on appeal of the basis of the decision.

Harris, 87 Wis. 2d at 661.

¶ 33. The Board is not required to make findings that respond to every issue the Church raised in its request for a variance. In the present case, the findings of fact, conclusions of law and determination rendered by the Board of Fire Appeals were specific enough to inform the parties, as well as this court on appeal, of the basis of the decision.

CONCLUSION

¶ 34. We affirm the decision of the Board of Fire Appeals denying the Church a variance from the dictates of the Fire Prevention Code for several reasons. First, to succeed in the constitutional challenge to the Fire Prevention Code, the Church had the initial burden of proving that there was a sincerely held religious belief that would be burdened by the application of the code. The Church failed to carry this burden because it did not present evidence of any basic tenet, principle or dogma supporting representations that an exposed sprinkler system would desecrate the worship space. Second, the Board's determination is the result of a reasonable and rational decision-making process. Finally, the Board's written findings of fact, conclusions of law and determination are sufficient and do not have to address every issue raised during the hearings.

By the Court. — Order affirmed.

       The Church does not challenge the fact that the Village's Fire Prevention Code is stricter than the State of Wisconsin's provisions for the installation of automatic sprinkler systems, Wis. Admin. Code ch. Comm 52, subch. II, "Automatic Fire Sprinkler Systems for Low Rise Buildings." See Konkel v. Town of Raymond, 101 Wis. 2d 704, 709, 305 N.W.2d 190 (Ct. App. 1981) (local ordinances may impose stricter standards than similar state regulation when the two do not conflict).

       In church architecture, the "narthex" is the "entrance hall leading to the nave of a church." The American Heritage Dl CTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2000), available at http://www.bartleby.eom/61/6/N0020600.html. The "nave" is "the central part of a church, extending from the narthex to the chancel and flanked by aisles." Id., available at http://www.bartleby.com/61/49/N0034900.html. The "chancel" is the "space around the altar of a church for the clergy and sometimes the choir, often enclosed by a lattice or railing." Id., available at http://www.bartleby.com/61/59/C0235900.html.

       The sprinkler system required by the Village is defined as
      an integrated system of underground and overhead piping designed in accordance with fire engineering standards. The system includes a suitable water supply such as a gravity tank, fire pump, reservoir or pressure tank and/or connection by underground piping to a municipal water main. The portion of the sprinkler system above ground is a network of specially sized or hydraulically designed piping installed in a building, structure or area, generally overhead, and to which sprinklers are connected in a systematic pattern. The system includes a controlling valve and a device for actuating an alarm when the system is in operation. The system is usually activated by heat from a fire and discharges water over the fire area.
      Village op Sussex Municipal Code § 5.15(5)(e).

       Despite our de novo standard of review, we value a trial court's decision. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475-76, 507 N.W.2d 163 (Ct. App. 1993). Here, the circuit court has provided us with a well-reasoned and thorough decision that is helpful and informative on the issues.

       The Church argues that our decision in Kollasch v. Adamany, 99 Wis. 2d 533, 299 N.W.2d 891 (Ct. App. 1980), is a nullity since it was reversed by the Wisconsin Supreme Court in Kollasch v. Adamany, 104 Wis. 2d 552, 313 N.W.2d 47 (1981). The issue in Kollasch was whether the Sisters of St. Benedict were subject to state sales tax for that portion of charges they made to guests for food and lodging. Id. at 554. We found that the applicable statutes required the sisters to obtain a sales tax permit and pay tax on nonexempt sales, Kollasch, 99 Wis. 2d at 547, and that the sales tax was not a burden to their exercise of religion; hence, the statutes were constitutional. Id. at 558. The supreme court reversed our decision. The supreme court held that the applicable sales tax statute did not apply to the sisters and, in the exercise of judicial prudence, did not address the constitutionality of the statute. Kollasch, 104 Wis. 2d at 554.
      The Church is wide of the mark in its argument that we cannot rely upon our decision in Kollasch. Ordinarily, holdings not specifically reversed on appeal retain precedential value. Spencer v. County of Brown, 215 Wis. 2d 641, 650, 573 N.W.2d 222 (Ct. App. 1997). Here, we cite to our decision in Kollasch because of the strength of its legal reasoning on the question of whether the Village's requirements violate the Church's freedom of worship and freedom of conscience. We are not the first to rely upon the legal reasoning expressed in Kollasch; it was cited for the same reason by the Wisconsin Supreme Court in State v. Miller, 202 Wis. 2d 56, 69, 549 N.W.2d 235 (1996).

       The general purpose of the Village's Fire Prevention Code is the "safeguarding, to a reasonable degree, life and property from the hazards of fire and explosion arising from storage, handling and use of hazardous substances, materials and devices and from conditions hazardous to life or property in the use or occupancy of buildings or premises within the Village." Village of Sussex Municipal Code § 5.15(1).