author: NETTESHEIM, J. BROWN, P.J.

text:
    Todd Nommensen, Plaintiff-Appellant, v. American Continental Insurance Company and Saint Mary's Medical Center, Inc., a Wisconsin corporation, Defendants-Respondents.
    Court of Appeals

      No. 99-3018.

      Submitted on briefs August 15, 2000.

    Decided September 27, 2000.

    2000 WI App 230
    (Also reported in 619 N.W.2d 137.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John Barry Stuff of Stewart, Peyton, Crawford, Crawford & Stuff of Racine.
    On behalf of the defendant-respondent, the cause was submitted on the brief of John A. Nelson and Timothy W. Feeley of von Briesen, Purtell & Roper, S.C. of Milwaukee.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

       Petition to review granted.

   NETTESHEIM, J.

¶ 1. This is a medical malpractice case commenced by Todd Nommensen against Saint Mary's Medical Center, Inc. and its insurer, American Continental Insurance Company (St. Mary's). A jury determined that St. Mary's was negligent but that such negligence was not causal. Nommensen appeals from the ensuing judgment dismissing his complaint. He argues that the trial court improperly admitted certain testimony and erroneously instructed the jury regarding the burden of proof. He also contends the verdict violated the five-sixths rule. We uphold all of the trial court's rulings and affirm the judgment.

Facts and Trial Court Proceedings

¶ 2. While Nommensen was hospitalized at St. Mary's following chest surgery, nurse Kim Dvorak Shepherd administered an injection of Toradol, a pain medication, into Nommensen's right thigh. Nommen-sen testified that he immediately felt a pain. He contended that the injection was made in the front of his thigh, a location different from all previous injections. Following the injection, Nommensen refused all further injections. St. Mary's records and Shepherd's notes did not document the location of the injection nor any complaint from Nommensen at the time the drug was administered. However, three days later, Shepherd's supervisor left a note for Nommensen's doctor saying that Nommensen had complained of numbness and a burning sensation in his right thigh. After his release from the hospital, Nommensen continued to experience pain and numbness in his thigh. Eventually, he was diagnosed with nerve damage.

¶ 3. According to the expert testimony, the proper locations for an injection are the shoulder, the buttocks, the side of the buttocks and the side of the mid-third of the thigh. Shepherd testified that she properly administered the injection under these standards.

¶ 4. Nurse Ellen Buggy testified on behalf of St. Mary's about certain properties of Toradol and its propensities for causing discomfort or harm even when properly injected. Nommensen objected to this testimony, arguing that it represented a superseding cause for his injury which St. Mary's had not pled as an affirmative defense. The trial court disagreed and permitted Buggy's testimony.

¶ 5. When instructing the jury on the burden of proof, the trial court used standard instruction WiS JI — CrviL 200, which states, "This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that 'yes' should be the answer." (Emphasis added.) In so instructing, the court rejected Nommensen's request that the word "probability" should be substituted for the word "certainty."

¶ 6. The jury determined that St. Mary's was negligent, with two jurors dissenting. However, the jury further determined that such negligence was not causal, with two different jurors dissenting. By a motion after verdict, Nommensen sought a mistrial ruling and a new trial, claiming that the verdict did not satisfy the five-sixths rule set out in WiS. Stat. § 805.09(2) (1997-98). The trial court ruled that the verdict satisfied the five-sixths rule.

¶ 7. Based upon the jury verdict, the trial court entered a judgment dismissing Nommensen's complaint. Nommensen appeals, challenging the three rulings we have discussed.

Discussion

1. Nurse Buggy's Testimony

¶ 8. Nommensen contends that Buggy's testimony about the properties of Toradol and its potential effect upon a patient even when properly administered was akin to a claim that Toradol was a defective product. He argues that this was a "superseding cause" theory of defense which St. Mary's was required to plead as an affirmative defense pursuant to Wis. Stat. § 802.02(3). Nommensen concludes, "As a result, [St. Mary's] shifted blame to a silent defendant with a silent chair in the courtroom who was added into the case after the statute of limitation ran."

¶ 9. We reject Nommensen's argument. We begin by noting that St. Mary's did not dispute that Nom-mensen had suffered an injury. Rather, its theory of defense was that Shepherd had properly administered the injection and had not caused Nommensen's injury. To that end, St. Mary's answer denied that it had caused the injury. Buggy's testimony was consistent with that defense, explaining that Toradol could cause such an injury even when properly administered. However, in making this defense, St. Mary's did not contend, akin to products liability law, that Toradol was defective, unsafe, unreasonably dangerous or otherwise unfit for the purpose intended. See WlS JI — Civil 3200. In short, this theory of defense was not an invocation of the law of superseding cause.

¶ 10. Furthermore, the attorneys' opening and closing statements to the jury confirm that St. Mary's did not deviate from its theory of defense as drawn by the pleadings. In fact, Nommensen himself anticipated that St. Mary's would offer the kind of defense represented by Buggy's testimony. In his opening statement, Nommensen's counsel stated, "[W]e know that the hospital will respond that. . . [Shepherd] gave the shot in the right place, but it was an untoward result; it was a bad result." Agreeing, St. Mary's counsel told the jury in his opening statement:

This is a case of an unfortunate but recognized complication of an appropriately given injection in Mr. Nommensen's thigh. Now you will hear that there is no dispute that Mr. Nommensen has what's called paresthesias or an area of sensory loss in his right thigh. What is in dispute is how that nerve came to be impaired. We expect to show you that such a complication can and does occur despite appropriate care being given by the nurses involved.

¶ 11. Echoing these very words, the first statement by St. Mary's counsel in his final argument to the jury was, "This is a case of an unfortunate but recognized complication of an intramuscular injection which was appropriately given." Moreover, counsel's only reference to Buggy's testimony in his final argument did not even deal with the testimony that Nommensen challenges on appeal. Rather, counsel cited to Buggy's unrelated testimony about the standard of care relative to the administration of injections.

¶ 12. In summary, the issue in this case was where Shepherd had made the Toradol injection in Nommensen's thigh. One of the questions posed by that issue was how Nommensen could have sustained his injury in the face of St. Mary's claim that the injection had been properly administered. St. Mary's answer was that Toradol itself carries properties which can occasion an injury, even if properly administered — a defense that Nommensen himself anticipated in his opening statement to the jury. And this was a defense consistent with St. Mary's denial of causation. Thus, Buggy's testimony did not move beyond the issues as drawn by the pleadings and as farther framed by the pretrial proceedings. We hold that the trial court properly allowed Buggy's testimony.

2. Burden of Proof Instruction

¶ 13. The trial court instructed the jury pursuant to Wis JI — Civil 200 which states, in relevant part, "This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that 'yes' should be the answer." Nommensen objected to this instruction, contending that the court should substitute the word "probability" for "certainty." In support, Nommensen looks to an article published in Verdict, a publication of the Wisconsin Academy of Trial Lawyers, which cites a study concluding that "certainty" produces a higher expectation in a juror's mind than "probability." See Alan E. Gesler, The Burden of Proof: How Certain is Reasonable, 14 Verdict 12 (Winter 1991).

¶ 14. Nommensen also cites to dated Wisconsin case law which has questioned the "certainty" standard. See, e.g., Pelitier v. Chicago, St. P., M. & O. Ry. Co., 88 Wis. 521, 60 N.W. 250 (1894). However, none of these cases have condemned the use of the term or deemed it error. Finally, Nommensen concedes that Wis JI — Civil 200 correctly sets out current Wisconsin law on the subject. In Victorson v. Milwaukee & Suburban Transport Corp., 70 Wis. 2d 336, 234 N.W.2d 332 (1975), the trial court had instructed the jury under the "probability" standard. See id. at 356. Holding that the instruction was error, albeit harmless, the court noted that the "certainty" standard is the proper level for satisfying the preponderance of the evidence test. See id. at 357. And the court cautioned that the use of the word "probability" was "not to be encouraged." Id.

¶ 15. Whether the "certainty" standard is a correct statement of the burden of proof is oftentimes produced by those cases where expert testimony is couched in terms of "reasonable probability." See, e.g., Brantner v. Jenson, 121 Wis. 2d 658, 663-68, 360 N.W.2d 529 (1985). The Wisconsin Civil Jury Instructions Committee has recognized the potential tension between the two concepts in its Comment to Wis JI—Civil 200:

Suggestions have also been made to the Committee and to trial judges during instruction conferences that the certainty element ("to a reasonable certainty") should be replaced with the term "reasonable probability." Apparently, this suggestion is prompted by the fact that most expert witnesses, at least in medical malpractice cases, are asked to give opinions "to a reasonable probability."

Nonetheless, the Committee has concluded "that the term 'reasonable certainty' has been firmly established in our case law and accurately reflects the degree of certitude jurors must reach in answering verdict questions." Id.

¶ 16. The court of appeals is principally an error-correcting court. See Jackson v. Benson, 213 Wis. 2d 1, 18, 570 N.W.2d 407 (Ct. App. 1997), rev'd on other grounds, 218 Wis. 2d 835, 578 N.W.2d 602 (1998), cert. denied, 525 U.S. 997 (1998). We are bound by the precedents established by our supreme court. See State v. Lossman, 118 Wis. 2d 526, 533, 348 N.W.2d 159 (1984). Given the standing law as announced by the supreme court, we conclude that the trial court did not err in its use of Wis J—Civil 200 when instructing the jury as to the burden of proof.

3. Five-Sixths Rule

¶ 17. Nommensen contends that because the two jurors who dissented from the negligence finding against St. Mary's were not the same two jurors who dissented from the finding of no causation, the verdict did not satisfy the five-sixths rule set out in WlS. Stat. § 805.09(2). The statute states:

VERDICT. A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixths of the jurors must agree on all the questions.

¶ 18. The supreme court set out the black letter principles of the five-sixths rule in Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 331 N.W.2d 585 (1983). The five-sixths rule does not require that the same ten jurors must agree on every question. See id. at 401. Rather, the rule requires that the same ten jurors must agree on all questions necessary to support a judgment on a particular claim. See id. Thus, when we conduct a five-sixths analysis, we review the verdict on a claim-by-claim basis rather than as a whole. See id. Finally, dissents which are important to one claim may be immaterial to another. See id.

¶ 19. Nommensen's argument fails because he seeks to use the whole verdict as the premise for his five-sixths challenge when, in fact, the jury's finding of no causation, standing alone, resolves the issue. Here, one of St. Mary's defenses was that even if it was negligent, such negligence did not cause Nommensen's injury. As noted, ten of the twelve jurors agreed with this assertion. This answer fully resolved St. Mary's claim of no causation in its favor and fully extinguished Nommensen's right to recover. Under Giese, the jury's other answer finding that St. Mary's was negligent was not "necessary to support a judgment" on St. Mary's claim that any negligence on its part did not cause Nommensen's injury.

¶20. The case law also establishes that these same principles apply whether we assess a verdict in favor of the plaintiff or the defendant. In Augustin v. Milwaukee Electric Railway & Transport Co., 259 Wis. 625, 49 N.W.2d 730 (1951), the jury determined that the defendant was not negligent, with two jurors dissenting. See id. at 629. The jury also determined that the plaintiff was not contributorily negligent with respect to three of four theories of liability presented, with two different jurors dissenting on one of the theories. See id. at 629-30. The supreme court held that the jury's finding of no negligence by the defendant, agreed to by ten of the jurors, entitled the defendant to a judgment of dismissal. See id. at 632-33.

¶ 21. To the same effect is Will v. Chicago, Milwaukee & St. Paul Railway Co., 191 Wis. 247, 210 N.W. 717 (1926), where the jury, with one dissenter, determined that the defendant was not negligent but also determined, with two dissenters, that the plaintiff was contributorily negligent. See id. at 249-50. The supreme court reversed a grant of a new trial on grounds that the jury had not agreed upon the verdict. See id. The court held that the answer as to the absence of negligence on the part of the defendant "requires a judgment for defendant because it is a complete verdict, in that it finds a want of the essential element for the plaintiff to maintain . . . namely, negligence or a breach of duty." Id. at 255.

¶ 22. Even apart from this case law, Nommen-sen's contention that we must look to the entire verdict does not bear up. If the jury in this case had unanimously agreed that St. Mary's was negligent, but ten jurors still found that such negligence was not causal, Nommensen could not argue that the verdict was defective because the same ten jurors would have agreed on all the questions. Yet here, where Nommen-sen has failed to persuade two of the jurors on the negligence question, he argues that the verdict is subject to a five-sixths challenge. Thus, Nommensen seeks to use his failure to persuade the two jurors on the negligence question as a sword against the verdict when he would not be permitted to do so if he had prevailed with all the jurors on the negligence question.

¶ 23. We uphold the trial court's ruling that the verdict satisfied the five-sixths rule.

Conclusion

¶ 24. We hold that the trial court properly admitted the testimony of Buggy and correctly instructed the jury as to the burden of proof under Wis JI — Civil 200. We also hold that the verdict satisfied the five-sixths rule.

By the Court. — Judgment affirmed.

BROWN, P.J.

¶ 25. (concurring).

I agree with the lead opinion in this case, and as it particularly relates to this concurrence, Part 2.1 write separately because I am convinced that it is time for the supreme court to reevaluate the use of the phrase "reasonable certainty" as it exists in our standard instruction to the jury relating to the burden of proof for ordinary negligence, Wis JI — Civil 200. Wisconsin law requires that the plaintiff prove negligence by a preponderance of the evidence. See Mock v. Czemierys, 113 Wis. 2d 207, 211, 336 N.W.2d 188 (Ct. App. 1983). I am satisfied that using the term "reasonable certainty" in the instruction creates too high of a risk that jurors will hold a plaintiff to a higher burden of proof than intended.

¶ 26. Wisconsin JI—Civil 200 states, in relevant part, as follows:

The burden of proof, other than on question -(e.g., comparison of negligence) and the damage questions in the verdict, rests upon the party contending that the answer to a question should be "yes." This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be the answer.
By the greater weight of the evidence is meant evidence which when weighed against evidence opposed to it has more convincing power. Credible evidence is evidence which ... is worthy of your belief. (Emphasis added.)

¶ 27. The term "reasonable certainty" is not defined for jurors. Jurors must therefore draw their own conclusions about what the term means. However, while jurors are left to their own devices to ascertain the meaning of the term, we may assume, for purposes of Wisconsin law, that jurors will draw the same meaning of a word or term which is defined in a recognized dictionary. Cf. Erdman v. Jovoco, Inc., 173 Wis. 2d 273, 279, 496 N.W.2d 183 (Ct. App. 1992) (stating that reasonable persons might look to a dictionary to define words). The Random House Dictionary of the English Language, Unabridged, defines the word "certainty" as: "1. the state of being certain. 2. something certain; an assured fact. 3. for or of a certainty, certainly; without a doubt: I suspect it, but I don't know it for a certainty." The Random House Dictionary of the English Language, Unabridged 339 (2d ed. 1987).

¶ 28. But we do not have to rely on assumptions and conjecture to come to the conclusion that ordinary persons think of "certainty" as being "free of doubt." We have empirical testing supporting it. A linguistic study was published in the New England Journal of Medicine indicating that the use of the word "certainty" produces in the hearer an expectation of probability of 94% or more. See Augustine Kong, et al., How Medical Professionals Evaluate Expressions of Probability, New Eng. J. Med. 740, 743 (1986). The study set out to quantify certain qualitative expressions. See id. at 740. Thus, while the study was of qualitative expressions, the experiment was quantitative. See id. The subjects were those who were either physicians or persons studying medical subjects and who were using interactive computer programs. See id. at 741. The subjects were asked to focus on twelve probability expressions: "certain," "almost certain," "very likely," "probable," "likely," "frequent," "not reasonable," "possible," "unlikely," "improbable," "almost never" and "never." See id. The subject's belief in the probability of a fact being true moved along a scale of 0% to 100% depending on the terms used. See id. Sampling error was taken into account and statistically enumerated and accounted for. See id. at 742.

¶ 29. The outcome, in pertinent part, was as follows: The word "certain" had a probability rating of 99%. See id. at 743. When the adverb "almost" was added to the adjective "certain," the median moved from 99% to 94%. See id. The data thus points to the unescapable conclusion that words matter and a person being asked to find something to a "certainty" thinks of the task as being asked to find something to a 99% degree of probability or higher. This empirical study was published in one of the most recognized avenues for peer review in the United States. There is a strong tradition of editorial overview. Hence, the study's empirical reliability is enhanced.

¶ 30. While it is true that the study did not measure the term "reasonable certainty," I am satisfied that it makes no difference. I do not believe that placing the adverb "reasonable" before the adjective "certainty" allows the hearer to qualify or downgrade the near absolute quality of the word "certain." The word "reasonable" is defined by THE RANDOM HOUSE DICTIONARY as "agreeable to reason or sound judgment; logical." See The Random House Dictionary at 1608. That jurors are asked to determine that a fact is "logically certain" is not the same as being asked to downgrade the probability of a fact being true. Rather, the jurors are simply being reminded that the decision about certainty must be one that is rationally made. I am convinced that the term "certainty" and the term "reasonable certainty" ask the jurors the same question.

¶ 31. Those who defend the use of "reasonable certainty" in the standard instruction most likely have no disagreement with this empirical data. They would probably agree that "reasonable certainty" means a probability of at least 94% or more. But they would also likely contend that it does no injustice to a plaintiff s burden to prove the case to a preponderance of the evidence. These defenders would probably argue that jurors are not told to hold the plaintiff to a burden of convincing them with evidence that is 94% certain or more. Rather, the jurors are only being asked to be at least 94% certain about which side's "story", has the greater weight.

¶ 32. The defenders would no doubt point out that there is a difference between preponderance of evidence and burden of proof. They would probably then cite Eichman v. Buchheit, 128 Wis. 385, 388 (1906), for the following proposition:

Preponderance of evidence and burden of proof are not the same thing, although they run into each other. By preponderance of evidence is meant the evidence which possesses greater weight or convincing power; by burden of proof is meant the duty resting on the party having the affirmative of the issue to satisfy or convince the minds of the jury, by the preponderance of the evidence, of the truth of his contention.

¶ 33. The defenders would most likely point to the language of the instruction as evidence that the jurors are told about the difference between deciding burden of proof and preponderance of the evidence. For instance, they would likely argue that the instruction does not say that preponderance of the evidence is equated with "reasonable certainty." Instead, the jurors are informed that the burden is to "satisfy you to a reasonable certainty by the greater weight of the credible evidence that yes should be the answer." Wis JI — Civil 200. The instruction goes on to say that, by the greater weight of the evidence, is meant evidence which when "weighed against evidence opposed to it has more convincing power." Id. The defenders would thus conclude that the jurors are informed how preponderance of the evidence is the same as the greater weight of the evidence.

¶ 34. The defenders would then say that "reasonable certainty" is a necessary component of the instruction because that term addresses the burden to satisfy the jurors. The instruction tells the jury to be reasonably certain about whether the plaintiff has met his or her affirmative duty to convince the jury of the weight of the evidence. See id. These defenders would most likely say that the supreme court got it right back in 1894 when the court rhetorically asked: "When the mind is satisfied or convinced of the existence of a fact, is the mind reasonably certain of the fact?" Pelitier v. Chicago, St. Paul, Minneapolis & Omaha Railroad Co., 88 Wis. 521, 529, 60 N.W. 250 (1894).

¶ 35. The defenders would thus conclude that the jurors are accurately informed about two different components of the law: burden of proof and preponderance of the evidence. In other words, the defenders would say that all the jurors are being asked to do is to be certain in their own minds (the burden of proving) that one side's evidence has greater weight than the other side's (the preponderance of the evidence).

¶ 36. The Wisconsin Civil Jury Instructions Committee of 1996 appeared to be among the defenders. When it was requested that the Committee delete the term "reasonable certainty," the Committee considered the request and declined to do so. See Comment, Wis JI—Civil 200, 1996, Regents, Univ. of Wisconsin. The Committee opined as follows: "The Committee believes that the term 'reasonable certainty' has been firmly established in our case law and accurately reflects the degree of certitude jurors must reach in answering verdict questions." Id.

¶ 37. I do not agree with the statement that the term is "firmly established" in our case law. And while the language in the instruction may accurately state how those well versed in the law might understand the appropriate meaning of the term "reasonable certainty," the instruction fails miserably in its attempt to explain to the jurors how to use the term "reasonable certainty." As a result, I am convinced that the language in the instruction runs a real risk of the jurors applying the term "reasonable certainty" to the quality of the evidence rather than applying the term to their state of mind about which side is the more convincing. See Alan E. Gesler, The Burden of Proof: How Certain is Reasonable, 14 WATL VERDICT 12 (Winter 1991).

¶ 38. First, I will respond to the Wisconsin Civil Jury Instructions Committee's assertion that the term "reasonable certainty" has been "firmly established" in our case law. I am not so convinced. In 1894, the supreme court wrote:

The expression "reasonable certainty" is not strictly accurate as a definition of the weight of evidence required, and may mean no more than that quantum of evidence which satisfies or convinces the mind of a reasonable person of the truth of a particular claim or contention. Possibly, however, it may mean more, and so be misleading. We think it better, in such cases, to stop with stating the usual rule that the party having the burden of proof must establish his case by a preponderance or the greatest weight of evidence.

Allen v. Murray, 87 Wis. 41, 46, 57 N.W. 979 (1894). And in Pelitier, the court was also less than enthusiastic about the trial court's use of the term "reasonable certainty" when describing the plaintiffs burden of proof. Although the court affirmed the trial court's use of the term, even a casual reading of the decision shows that it was done with some misgiving. See Pelitier, 88 Wis. at 528.

¶ 39. Fast forward to Sullivan v. Minneapolis, St. Paul & Sault Sainte Marie Railway Co., 167 Wis. 518, 167 N.W. 311 (1918). There, the court rejected the argument that a jury instruction in a negligence case must contain the phrase "reasonable certainty" to describe the burden of proof. See id. at 527. The court called the term "surplusage" which "adds nothing." See id.

¶ 40. The first unequivocal endorsement of the term was in Kausch v. Chicago & Milwaukee Electric Railway Co., 176 Wis. 21, 26, 186 N.W.2d 257 (1922). But in that case no instruction was given to the jury on either the definition of burden of proof or preponderance of the evidence. See id. Rather, the trial judge instructed the jurors that they must be "reasonably certain" of their answers. See id. What that instruction did, therefore, was clearly and accurately speak to the jurors' state of mind. This is a far cry from the language now used in the standard instruction.

¶ 41. It was not until Victorson v. Milwaukee & Suburban Transport Corp., 70 Wis. 2d 336, 356-57, 234 N.W.2d 332 (1975), that the court gave its first unequivocal imprimatur to the term as used in the standard jury instruction. But the reason given for this affirmation was founded upon the holding in Kausch. See Victorson, 70 Wis. 2d at 356-57. Again, however, the instruction given in Kausch clearly told the jurors that they had to be reasonably certain of their answers. See Kausch, 176 Wis. at 26. In other words, jurors were informed that the term went to their own state of mind. No attempt was made by the Victorson court to explain how the standard jury instruction told jurors the same thing as was told to the jurors in Kausch.

¶ 42. I am reminded of a quote made by the great Oliver Wendell Holmes:

It is so revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Oliver Wendell Holmes, The Path of Law, 10 Harv. L. Rev. 457, 469 (1897).

¶ 43. It is my view that the law is not "firmly established" and that continued use of the term "reasonable certainty" is based, in part, upon blind allegiance to what, on closer inspection, reveals a checkered past. I agree with Alan Gesler's conclusion that the burden of proof language was created by accident rather than analysis. See Gesler, supra, at 13.

¶ 44. I will now discuss the Wisconsin Civil Jury Instructions Committee's statement that the instruction accurately reflects the degree of certitude jurors must reach in answering verdict questions. First, the statement does not go far enough. An instruction is not a good one simply because it accurately states the law. It must also be drafted in such a manner that jurors understand the language contained within it. The immediate problem with the instruction is that it makes no attempt to explain to the jurors how there are two separate pieces of information being presented to them: (1) that the jurors must be convinced in their own mind; and (2) that they must be convinced that one side's evidence is probably more true than the other side's. There is nothing in the instruction that says the weighing process means the jurors are asked to determine whether the plaintiffs evidence is more than likely truer than the defendant's. There is, in fact, no explanation of how to "weigh the evidence." This void creates the very real risk that the jurors will use the "reasonable certainty" language as the method by which the two sides are weighed. The jurors can easily understand the instruction to say that unless the plaintiffs evidence is true to a "reasonable certainty" it may not be considered weighty enough for the plaintiff to prevail.

¶ 45. I will paraphrase the instruction based upon the dictionary definitions and empirical data I have set forth above. I am convinced that reasonable jurors could understand the instruction to say as follows: "Plaintiffs evidence is weighed against the defendant's and the job of deciding whose evidence has more weight is yours. But before you may find that the plaintiffs evidence has more weight, you must first be satisfied that the plaintiff has provided you with evidence that is absolutely true or nearly absolutely true." I would be the first to say that not all jurors would glean this meaning from the instruction. But I argue that some would. The job of an instruction is to not only accurately state the law but explain what the law means to persons who usually do not possess law degrees. Here, the instruction fails in its duty to teach.

¶ 46. I suggest an instruction that conveys a plain message to the jurors about what their job is. I would say:

Your job is to determine whether the plaintiff has submitted evidence which has greater weight than the defendant's. It is the plaintiffs burden to satisfy you, in your own mind, that (his, her or its) evidence is more convincing to you than the defendant's. The plaintiff does not have to convince you that the evidence is absolutely true or even almost true. In other words, the plaintiff need not exclude the probability that the contrary conclusion may be true. Rather, the plaintiff has to convince you that (his, her or its) evidence outweighs the other as to the probabilities. If you are satisfied that the evidence submitted by the plaintiff is more likely true than not true, you may find for the plaintiff. If, however, you are convinced that the plaintiffs evidence is more likely not true, than you may find that the plaintiff has not met (his, her or its) burden of convincing you.

¶ 47. I believe that the proposed instruction comports with Wisconsin law. It tells the jury that it is the plaintiff who has an affirmative duty. See Eichman, 128 Wis. at 388. It tells the jurors what this affirmative duty is: to convince them. See id. It tells the jurors what it is that the plaintiff must convince them of: that the plaintiffs evidence is more probably true than the defendant's. See Grotjan v. Rice, 124 Wis. 253, 258-59, 102 N.W. 551 (1905). Finally, it tells the jurors that if they are not convinced that the plaintiffs evidence is more likely true than not true, then the weight of the plaintiffs evidence is not sufficient.

¶ 48. In the final analysis, this concurrence is a call to change the paradigm about how we write our instructions. Much has been written about data confirming that jurors are often lost in a sea of legalisms. What we should be doing, as we enter the twenty-first century, is to better teach jurors what the law means and how they should apply it. We should not be content with giving an "accurate statement of the law." The various jury instructions committees in Wisconsin have done an exemplary job in this regard for the most part. However, the standard instruction on burden of proof stands as a poster child for those instructions that need to be more juror friendly. I fear that, while we may never know for sure whether a jury made its decision based upon an inaccurate understanding of its responsibility, the risk that this has occurred is real. We should change the wording of the instruction to insure that jurors are really acting in accordance with the law given to them.

       The jury fixed Nommensen's damages at $95,000. One of the jurors who dissented on the first question regarding St. Mary's negligence also dissented on this damage question.

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


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    Seater Construction Co., Inc., Plaintiff-Respondent, v. Rawson Plumbing, Inc., Defendant-Appellant.
    Court of Appeals

      No. 99-3203.

      Submitted on briefs August 15, 2000.

    Decided September 27, 2000.

    2000 WI App 232
    (Also reported in 619 N.W.2d 293.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert H. Bichler of Hostak, Henzl & Bichler, S.C. of Racine.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of John M. Bjelajac of Har-tig, Bjelajac, Cabrones & Koenen of Racine.
    Before Nettesheim, Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Rawson Plumbing, Inc., appeals from a judgment of the trial court in favor of Seater Construction Co., Inc. Seater, a general contractor, brought an action against Rawson, a subcontractor, pursuant to the doctrine of promissory-estoppel. Seater alleged that Rawson submitted a subcontractor bid to do the plumbing work on a construction project that Seater relied upon in submitting its general contractor's bid. Seater was awarded the construction contract, after which, it alleged, Raw-son refused to honor its subcontractor bid. After a trial to the court on the grounds of promissory estoppel, the trial court ruled in favor of Seater on a breach of contract basis. Rawson appeals, arguing that no contract existed between it and Seater and therefore no breach could occur. Rawson further argues that Seater has no right to recover on the grounds of promissory estoppel. We affirm the judgment of the trial court pursuant to the doctrine of promissory estoppel.

FACTS

¶ 2. Seater is a general contractor in Racine, Wisconsin. On August 7,1997, Seater offered a written bid proposal to the City of Waukesha (city) for the construction of an administrative office building and storage facility (the project).

¶ 3. Most of the work on the project was to be performed by subcontractors employed by Seater. On August 7,1997, the deadline for submitting bids for the project, Rawson submitted a written subcontract bid to Seater offering to perform certain portions of the project's plumbing work for $179,663. Rawson's bid did not include all of the required plumbing work for the project but excluded certain oil/grease lubrication lines and equipment. Another subcontractor submitted a bid for this excluded plumbing work in the amount of $62,825. Rawson's bid combined with this second subcontractor's bid encompassed all of the necessary plumbing work and had a combined bid total of $242,458. This was the lowest bid that Seater received for all of the needed plumbing work and was therefore used by Seater and incorporated into its bid to the city. Seater's bid of $4,341,000 was accepted by the city as the lowest bid for the project.

¶ 4. In mid-September 1997, Seater received the project contract from the city. The city had not signed the contract, but sent the contract to Seater for its signature and for the attachment of the appropriate bonds and insurance documents. Seater then sent a letter to Rawson, dated September 15,1997, indicating that Seater would be sending Rawson a written subcontract agreement after the city signed the project contract. On or about September 17, 1997, Seater signed the project contract, attached the necessary paperwork, and returned the contract to the city for the city's signatures. The city signed the contract on September 29, 1997. Seater received a fully executed copy of the contract sometime during the first week of October 1997.

¶ 5. On or about October 7,1997, Seater received a construction bulletin from the city's architects for the project, asking about potential contract price adjustments if portions of the project were to be changed. Some of the proposed project changes involved the plumbing work. Seater then sent a letter to Rawson, dated October 10, 1997, asking Rawson about price adjustments if the proposed changes were implemented. Rawson sent a written response, dated October 20, 1997, informing Seater that a subcontract price increase of $9222 would be necessary if the proposed changes were required. Seater then forwarded this information to the city in a letter dated October 27, 1997.

¶ 6. On November 5,1997, Seater sent Rawson a written subcontract agreement for Rawson's work on the project. On that same day, Michael Wiedenbeck, Seater's manager for the project, called Mark Derouin, Rawson's president. Wiedenbeck informed Derouin of the project's progress and notified him of the date Raw-son would be needed on the project site to start the plumbing work. Rawson was scheduled to begin the plumbing work on November 17,1997.

¶ 7. On November 12, 1997, Rawson called Seater and requested three sets of the plans and specifications for the project. Seater mailed the plans and specifications to Rawson that same day.

¶ 8. On November 17,1997, Rawson did not show up at the project site as planned. On November 19, 1997, Seater mailed a written copy of the project schedule to Rawson. By the first week of December, Rawson still had not reported to the project site; on December 9, 1997, Seater sent a facsimile to Rawson, reminding Rawson that it should have reported to the project site on November 17,1997.

¶ 9. On December 16, 1997, Derouin called Wiedenbeck and informed him that because of an error in the subcontract bid, Rawson would not be able to complete the work at the agreed-upon price. Seater immediately contacted other plumbing subcontractors who had submitted Seater bids in August Í997, but none were available to take the job. The only subcontractor available, Kaelber Company, agreed to do the work if it became necessary.

¶ 10. On or about December 19,1997, Jeff Stacy, the president of Seater, called Derouin. Derouin informed Stacy that Rawson could not do the plumbing work at its original bid amount because there had been a mistake in the bid proposal. Derouin told Stacy that Rawson would need more money to do the necessary work, and Derouin promised that he would submit a dollar amount to Seater. Seater's attorney then sent a letter to Rawson, dated December 23,1997, demanding that Rawson honor its original subcontractor bid.

¶ 11. On December 30,1997, Rawson sent Seater a facsimile indicating that Rawson could complete the project plumbing work for $209,663; this amount was $30,000 more than Rawson's original bid. On or around that same date, Stacy called Derouin to further discuss this matter. Stacy informed Derouin that Rawson's original bid was in the normal bid range when the excluded work was considered. Derouin again informed Stacy that he had made a bid error. Stacy proposed that Seater pay an additional $14,000 to Rawson under the subcontract agreement, and Derouin agreed to that amount.

¶ 12. On or about January 2, 1998, Wiedenbeck prepared and sent to Rawson a change order providing for the payment of an additional $14,000 to Rawson under its subcontract. The change order noted the amount of the added payment and stated "Adjustment to bid day proposal error per Mark." On or about January 5, 1998, Rawson sent Seater a facsimile indicating that Rawson disagreed with the aforementioned language and insisting that the language of the change order read:

Rawson original proposal expired, renegotiated. Contract adjustment agreed to, in full, by both parties. Total add $14,000.00. New contract amount shall be $193,663.00.

¶ 13. Seater refused to make this requested change in the language of the change order and wanted to use its proposed language. Rawson then sent another facsimile to Seater, dated January 5, 1998, indicating that it would not do the project plumbing work unless Rawson's proposed language change was implemented in the change order. On January 6,1998, Seater sent a facsimile to Rawson indicating that it would not accept Rawson's proposed language change because (1) Rawson's original bid had never expired, and (2) Rawson's miscalculation, not an alleged bid expiration, was the basis for the $14,000 change order.

¶ 14. On or about January 7, 1998, Rawson sent Seater another facsimile demanding a change order with Rawson's proposed language change; in addition, Rawson claimed that its original bid had a sixty-day expiration period by virtue of the language contained in Seater's contract with the city. Neither Rawson nor Seater was willing to accept the other's terms; Seater therefore hired Kaelber Company as a plumbing subcontractor to complete Rawson's work on the project. As a result of hiring Kaelber Company at the last minute and because of construction delays, Seater incurred extra expenses on the project totaling $45,400.

¶ 15. Seater then brought suit against Rawson for promissory estoppel. The matter proceeded to a trial before the court. The trial court granted judgment against Rawson for breach of contract in the amount of $45,400.

DISCUSSION

¶ 16. The trial court granted judgment to Seater on a breach of contract basis, even though Seater's complaint was grounded in the doctrine of promissory estoppel. Rawson argues that because there was no contract between Rawson and Seater, no breach could occur. Rawson further argues that Seater has no right to recover on the grounds of promissory estoppel. We disagree.

¶ 17. We will not reverse a factual determination made by a trial court without a jury unless the finding is clearly erroneous. See Wis. Stat. §805.17(2) (1997-98); see also Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). However, we determine questions of law independently, giving no deference to the conclusions of the trial court. See Levy v. Levy, 130 Wis. 2d 523, 529, 388 N.W.2d 170 (1986).

¶ 18. We will not reverse a correct decision of the trial court even though the reason for that decision may have been erroneously expressed. See State ex rel. Schultz v. Bruendl, 168 Wis. 2d 101, 113, 483 N.W.2d 238 (Ct. App. 1992). If a trial court reaches the correct result, even for the wrong reason, the trial court's decision will be affirmed. See State v. Amrine, 157 Wis. 2d 778, 783, 460 N.W.2d 826 (Ct. App. 1990).

¶ 19. Wisconsin recognized promissory estoppel as a cause of action in Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683, 133 N.W.2d 267 (1965). The Hoffman court provided:

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the prom-isee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

Id. at 694 (citation omitted). The Hoffman court described promissory estoppel as "an attempt by the courts to keep remedies abreast of increased moral consciousness of honesty and fair representations in all business dealings." Id. at 695 (citation omitted).

¶ 20. Hoffman sets out three requirements of a promissory estoppel cause of action:

(1) Was the promise one which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee?
(2) Did the promise induce such action or forbearance?
(3) Can injustice be avoided only by enforcement of the promise?

Id. at 698. The first two elements are questions for the fact finder. See U.S. Oil Co. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 89, 440 N.W.2d 825 (Ct. App. 1989). The third element is a policy question to be decided by the court. See id.

¶ 21. We must determine if the facts of this case demonstrate that Seater is entitled to promissory estoppel relief. We are bound by the factual findings of the trial court unless the findings are clearly erroneous. See Wis. Stat. § 805.17(2).

¶ 22. We conclude that the trial record supports Seater's promissory estoppel claim. On August 7,1997, Rawson submitted a subcontractor bid for Seater's use in its general bid for the project. Rawson's bid was for a specific amount of money — $179,663—for all project plumbing work, excluding certain oil/grease lubrication lines and equipment. On September 15, 1997, Seater sent Rawson notice that Rawson had been the lowest plumbing bidder on the project, that Seater's general bid had been accepted by the city, and that Rawson's subcontract would soon be mailed. Rawson admittedly knew that its bid had been incorporated into Seater's bid and that the city had accepted Seater's low bid soon after August 7, 1997. Rawson knew that Seater had accepted its bid when Rawson was asked about price changes for plumbing modifications at the beginning of October 1997. Rawson submitted the proposed price changes to Seater regarding the plumbing modifications on October 20,1997.

¶ 23. On November 5, 1997, Seater sent Rawson the subcontractor agreement. Seater's project manager called Rawson's president on November 5,1997, to provide Rawson the date Rawson was needed at the project. On November 12, 1997, at Rawson's request, Seater sent Rawson three sets of plans and specifications for the project. On November 19, 1997, Seater sent Rawson another project schedule. Not once during this entire time, from August 7, 1997, until early December 1997, did Rawson make any attempt to withdraw its bid.

¶ 24. Rawson's bid constituted a promise to Seater to complete the plumbing work on the project for a specific price if the city accepted Seater's bid. Raw-son's bid was definite and it reasonably expected the bid to induce action by Seater. The terms of the bid were unequivocal and clear. Rawson's promise induced Seater to submit its bid to the city and to sign a contract with the city for the project. In addition, Rawson's behavior after the bid indicated its willingness to provide the project plumbing work at the bid price. Rawson continued to participate in the project development and to coordinate its agenda with Seater. Rawson never mentioned its inability to honor its promise until after it failed to appear at the project site on schedule.

¶ 25. As a result of Rawson's failure to honor its promise, Seater was compelled to find another subcontractor to complete the work. Due to construction delays and the last-minute hiring of Kaelber Company, Seater incurred $45,400 in extra expenses. The only way to avoid an injustice in this situation is for Rawson to compensate Seater for the extra expenses Seater incurred as a direct result of Rawson's failure to honor its promise.

¶ 26. Rawson argues that it is not bound by its promise because the bid had expired based upon a clause in the project manual. Specifically, Rawson relies upon the section of the project manual entitled "Proposal." The proposal section of the project manual states, in relevant part, "All [b]ids as stated above are effective and open for acceptance by the Owner for a period of sixty (60) days after date set for opening of bids." Rawson argues that because of this clause, Seater had no right to rely on Rawson's bid beyond sixty days from August 7,1997. This argument is without merit.

¶ 27. First, the language of the project manual, not only in the proposal section but throughout the entire manual, applies the sixty-day expiration clause not to Rawson, but to Seater, the general contractor. The proposal section gives instructions to general contractors regarding the submission of a bid to the city, the bid forms required by the city, and the timing of the bid to the city. These instructions apply to the general contractors who are offering bids directly to the city, not to the subcontractors. We disagree with Rawson that the language on page 300-7 of the project manual applies to subcontractors.

¶28. Second, even if the sixty-day expiration clause did apply, by its own admission Rawson knew long before the sixty-day period expired on October 7, 1997, that Seater had accepted Rawson's bid, that Seater's bid was the lowest bid, and that the city had accepted Seater's bid. Rawson knew all of this information within days of its August 7, 1997 bid. On September 15, 1997, Seater sent Rawson notice that Seater intended to proceed with Rawson's bid and after signing the contract with the city would forward a subcontract to Rawson. Rawson knew that Seater had accepted its bid when Rawson was asked about price changes for plumbing modifications at the beginning of October 1997.

¶29. Furthermore, a great deal of activity in which Rawson actively participated occurred after the alleged expiration of the sixty-day period. Rawson submitted the proposed price changes to Seater regarding the plumbing modifications on October 20,1997. Raw-son received a contract from Seater around November 5,1997. Seater's project manager called Rawson's president on November 5,1997, to provide Rawson the date it was needed at the project. On November 12, 1997, Rawson requested three sets of project plans and specifications. Rawson continued to actively participate in the project development after October 7,1997, contrary to its contention that its bid had expired on October 7, 1997.

¶ 30. The reasoning in Sandroni v. Waukesha County Board of Supervisors, 173 Wis. 2d 183, 496 N.W.2d 164 (Ct. App. 1992), supports our conclusion. In Sandroni, a subcontractor brought an action against a general contractor for declaratory and injunctive relief to compel the general contractor to use its services on the basis of acceptance of a bid that had included its bid as a subcontractor. We held that the subcontractor had no standing to make a contract claim. See id. at 185.

¶ 31. Here, we have an entirely different situation. We have a general contractor seeking to enforce a bid from a subcontractor. Sandroni anticipated just such a situation:

[T]he reason a subcontractor is bound by its bid is the existence of justifiable reliance by the general on the subcontractor's price for specified work. The general makes his bid after gathering bids and evaluating a number of subcontract bids. Once the general wins the prime contract... he is bound to his own bid. For the subcontractor to be able to refuse to perform would subject the general to a financial detriment. . . . Ample justification exists for binding the subcontractor ....

Id. at 189 (citations omitted). Sandroni reasons that a subcontractor should be bound by its bid because of the general contractor's reasonable reliance on the bid in submitting its own general bid for the prime contract. See id.

¶ 32. Rawson promised Seater, by virtue of its subcontractor bid,- to complete the necessary project plumbing work for a specific price if Seater's bid was accepted by the city. Seater relied on that promise in submitting its own bid for the project. Rawson's failure to honor its bid cost Seater $45,400 and justice demands that Rawson compensate Seater for this expense.

CONCLUSION

¶ 33. A subcontractor is bound by its bid to a general contractor under the doctrine of promissory estoppel if the subcontractor's bid induced the general contractor to submit a bid and accept an offer for a construction project. If the subcontractor fails to honor that promise, injustice to the general contractor can only be avoided by enforcement of the subcontractor's bid. Seater's reliance on Rawson's bid and Rawson's subsequent failure to honor that bid cost Seater $45,400. While the trial court found in favor of Seater on a breach of contract basis, we conclude that the record facts support recovery pursuant to the doctrine of promissory estoppel, the cause of action originally pled by Seater. The trial court's judgment is affirmed.

By the Court. — Judgment affirmed.

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

       Rawson claims that it never received Seater's September 15,1997 letter. The trial court found this assertion to be incredible. The letter was mailed to Rawson's correct address in the normal course of business along with all the other subcontractor letters. In addition, Rawson continued to participate in the project process. Even if Rawson's assertion was true, the trial court found that Rawson knew that Seater's bid had been accepted by the city within days of August 7,1997.


author: ROGGENSACK, J.

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

      No. 99-2298-CR.

      Submitted on briefs April 14, 2000.

    Decided September 28, 2000.

    2000 WI App 225
    (Also reported in 619 N.W.2d 267.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Jennifer E. Nashold, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Jay M. Langkamp of Langkamp Law Office, of Madison.
    Before Dykman, P.J., Roggensack and Deininger, JJ.
   ROGGENSACK, J.

¶1. The State of Wisconsin appeals an order of the Jefferson County Circuit Court refusing to bind over Michael J. Lindholm for trial on a felony charge of operating a motor vehicle while intoxicated (OMVWI) because the State submitted only a certified abstract of the Department of Transportation (DOT) driving record for Lindholm as proof of his prior convictions. We conclude that, in a preliminary hearing, such an abstract, as a matter of law, satisfies probable cause to believe that a defendant, who was charged with felony OMVWI because he had a child under sixteen years of age in the car, had sufficient prior OMVWI convictions to be bound over for trial. Therefore, we reverse the order of the circuit court and remand for further proceedings.

BACKGROUND

¶ 2. Lindholm was charged with OMVWI under Wis. Stat. § 346.63(1)(a) (1997-98). The State alleged that he had two previous OMVWI convictions and a passenger younger than sixteen in his car at the time he was stopped; therefore, the crime was charged as a felony pursuant to WlS. Stat. § 346.65(2)(f). At the preliminary hearing, the State presented proof of intoxication and a stipulation to the age of Lindholm's passenger that are not challenged on appeal. The State also attempted to prove Lindholm's previous convictions using a certified abstract of his DOT driving record. It was uncontested that the State could not obtain copies of the earlier judgments of conviction because those records had been destroyed by the municipalities where the convictions occurred. The DOT record showed a 1991 OMVWI violation and conviction in Milwaukee County and a similar 1997 offense and conviction in Walworth County. It also showed Lindholm's date of birth, driver's license number, other motor vehicle offenses, and the points he received for each conviction. Without placing Lindholm on the stand, his attorney contested the 1991 conviction, asserting that only the 1997 conviction was valid, and he demanded certified judgments of conviction to establish probable cause for the State's allegations.

¶ 3. The circuit court concluded that the State had not presented sufficient proof of the prior convictions at the preliminary hearing to warrant a bind over. It dismissed the charge and ordered that a misdemeanor charge be filed in its place. The court's main concern focused on the destruction of the underlying records from which the abstract had been prepared. Based on that fact, it reasoned that Lindholm's right of cross-examination had been impaired, and therefore, it concluded the abstract could not be competent proof of prior convictions. The State appeals the order dismissing the felony OMVWI.

DISCUSSION

Standard of Review.

¶4. When the principal facts are undisputed, whether they are sufficient to support probable cause to believe that the defendant has committed a felony is a question of law, which we review de novo. See State v. Fry, 129 Wis. 2d 301, 305, 385 N.W.2d 196, 199 (Ct. App. 1985).

Sufficiency of Proof.

¶ 5. Because Lindholm was charged with felony OMVWI, the State was required to provide him with a preliminary hearing as outlined in WlS. STAT. § 970.03(1), which states:

A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant.

The factors that make an OMVWI a felony under WlS. Stat. § 346.65(2)(f) are having two or more prior OMVWI convictions and having a person under sixteen years of age in the car at the time of the OMVWI violation. There was no question at the preliminary hearing about the age of Lindholm's passenger; only the requisite number of prior convictions was disputed. The State contends that the abstract of Lindholm's DOT driving record was sufficient to establish probable cause that Lindholm had been convicted previously of two OMVWI offenses. We agree.

¶ 6. The purposes of a preliminary examination are: to prevent hasty, malicious, improvident, and oppressive prosecutions; to

protect the person charged from open and public accusations of crime; to avoid both for the defendant and the public the expense of public trial; to save the defendant from the humiliation and anxiety involved in public prosecution; and to discover whether there are substantial grounds upon which a prosecution may be based.

Fry, 129 Wis. 2d at 306-07, 385 N.W.2d at 199-200 (citing State v. Dunn, 121 Wis. 2d 389, 398, 359 N.W.2d 151, 153-54 (1984)). The purpose of a preliminary hearing is not to determine a defendant’s guilt or innocence. See State v. Koch, 175 Wis. 2d 684, 704, 499 N.W.2d 152, 162 (1993). The court is not to choose between conflicting facts or inferences or to weigh the evidence presented by the State with that favorable to the defendant. See id. "Simply stated, probable cause at a preliminary hearing is satisfied when there exists a believable or plausible account of the defendant's commission of a felony." Dunn, 121 Wis. 2d at 398, 359 N.W.2d at 155; see also Wis. Stat. § 970.03(1). Additionally, in an OMVWI prosecution where priors are alleged, the priors are not elements of the crime of driving or operating a motor vehicle while under the influence of an intoxicant or a controlled substance; therefore, whether priors exist is not a question for the jury. See State v. McAllister, 107 Wis. 2d 532, 532-33, 319 N.W.2d 865, 866 (1982). Instead, probable cause for the number of prior convictions had to be established at the preliminary hearing because it changed the status of the offense to that of a felony; it was not because the number of priors was an element of the substantive crime of OMVWI. We also note that:

[tjhere is no presumption of innocence accruing to the defendant regarding the previous conviction or convictions; . . . [however, the] defendant does have an opportunity to challenge the existence of the previous penalty-enhancing convictions before the judge prior to sentencing.

Id. at 539, 319 N.W.2d at 869.

¶ 7. The State urges us to accept the reasoning in State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996) and State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996). In Wideman and Spaeth, the supreme court employed the phrase "other competent proof in regard to the sentencing phase of a trial to describe the proof of prior convictions which is sufficient to apply the penalty enhancers. In Wideman, the court concluded that, even though the proof required to sustain enhanced penalties as a repeater under Wis. Stat. § 973.12(1) did not apply to the penalty enhancement provisions of Wis. Stat. § 346.65(2) that are at issue here due to the exclusion of chs. 341-49 offenses by Wis. Stat. § 939.62(3)(a), the State was still required to prove the priors, either by an admission from the defendant or by presenting "certified copies of conviction or other competent proof." Wideman, 206 Wis. 2d at 94-95, 556 N.W.2d at 739 (citing McAllister, 107 Wis. 2d at 539, 319 N.W.2d at 869). Because Wideman had admitted two prior OMVWI convictions, the court did not address what it meant by "other competent proof."

¶ 8. In Spaeth, a companion case to Wideman where repeated convictions for operating after revocation (OAR) were a sentencing issue, the court concluded that "competent proof must reliably demonstrate, with particularity, the existence of each prior OAR conviction." Spaeth, 206 Wis. 2d at 150, 556 N.W.2d at 734. The court instructed that the State may prove the prior convictions through "reliable documentary proof." Id. at 148, 556 N.W.2d at 733-34. The court included within the definition of competent proof a copy of the defendant's DOT driving record. See id. at 153, 556 N.W.2d at 735.

¶ 9. With the quantum of proof required at a preliminary hearing as described by Koch and Dunn clearly in mind, we examine whether a certified copy of Lindholm's DOT driving record is sufficient to establish probable cause to believe Lindholm had two prior OMVWI convictions. We conclude that it is.

¶ 10. First, the abstract is the same item of proof that was found to be sufficient proof for sentencing purposes in Spaeth. Second, it provides a "plausible account" of Lindholm's commission of a felony, as required by Dunn. Third, even though Wideman holds that the proof standards described in WiS. STAT. § 973.12(1) do not apply to establish prior OMVWI convictions, the certified copy of DOT's record is an agency record sufficient to satisfy the standard for prima facie proof of a repeater found in § 973.12(1). Fourth, the fact that the records that underlie the abstract have been destroyed does not necessarily cause it to contain erroneous information. The DOT is the state agency charged with maintaining the record of convictions for every licensed driver in the state. See WiS. Stat. § 343.23. If there are errors in the abstract, there are many ways of establishing that at the sentencing phase if Lindholm is convicted. Fifth, the destruction of the records underlying the abstract does not preclude examination of the custodian of the record at sentencing about errors Lindholm's counsel says the abstract contains, such as his assertion that Lindholm did not. have a driver's license in 1991. That fact might be proved by the driver's license number that was assigned to him, which appears on the face of the license. And finally, permitting a DOT certified abstract of Lindholm's driving record to provide probable cause to believe he has had two past OMVWI convictions will not thwart any of the purposes of having a preliminary hearing as a prerequisite to binding a defendant over for trial for felony OMVWI. Therefore, we conclude that, as a matter of law, the certified copy of Lindholm's driving record did provide proof sufficient to sustain the State's burden to establish probable cause to believe that Lindholm probably committed a felony, and we reverse the circuit court's order dismissing the felony OMVWI charge.

CONCLUSION

¶ 11. Because we conclude that, in a preliminary hearing, a DOT abstract of a defendant's driving record is sufficient to establish probable cause to believe that a defendant, who was charged with felony OMVWI because he had a child under sixteen years of age in the car, had sufficient prior convictions of OMVWI to be bound over for trial, we reverse the order of the circuit court and remand for proceedings consistent with this opinion.

By the Court. — Order reversed.

       Wisconsin Stat. § 346.63(1)(a) provides:
      No person may drive or operate a motor vehicle while:
      (a) Under the influence of an intoxicant... to a degree which renders him or her incapable of safely driving....

        Additionally, all further references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       Wisconsin Stat. § 346.65 provides in relevant part:
      (2) Any person violating s. 346.63(1):
      (c) Except as provided in par. (f), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 30 days nor more than one year in the county jail if the total number of suspensions, revocations and convictions counted under s. 343.307 (1) equals 3 ....
      (f) If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63(1), the applicable minimum and maximum forfeitures, fines or imprisonment... for the conviction are doubled. An offense under s. 346.63(1) that subjects a person to a penalty under par. (c)... when there is a minor passenger under 16 years of age in the motor vehicle is a felony....

       Lindholm's certified driving record indicated that both prior convictions were ordinance violations and the case files had been purged. Records of ordinance violations may be destroyed after five years. See SCR 72.01(24), (24a), and (24m) (1999). Public records of any town, city or village (except for court records governed by SCR ch. 72) may be destroyed after seven years. See Wis. Stat. § 19.21(4)(c) and (5)(c).

       Under Wis. Stat. § 973.12(1), an official report of any state agency is prima facie proof of any conviction or sentence reported therein.

       Lindholm urges us not to conclude our analysis with whether the abstract is sufficient to support the probable cause determination necessary for bind over. He argues that to do so would be an ineffective use of judicial resources because the DOT abstract can never provide sufficient proof to actually invoke the repeater provisions of Wis. Stat. § 346.65(2)(c) and (f). We have some concerns about the proof that is required at sentencing because Wideman and Spaeth were both based on a statute that did not include § 346.65(2)(f), a felony. Therefore, the policies that drove those decisions, such as being rationally related to a legislative objective in part because "the enhanced penalties under § 346.65(2) are penalties for misdemeanors, with relatively short periods of incarceration and moderate fines," State v. Wideman, 206 Wis. 2d 91, 107, 556 N.W.2d 737, 744 (1996), are not applicable to para. (2)(f), which makes imprisonment for a felony a possibility. However, the burden of proving those past convictions continues to rest with the State, just as it does under other repeater statutes. See State v. Koeppen, 195 Wis. 2d 117, 127, 536 N.W.2d 386, 390 (Ct. App. 1995). Additionally, the presentation of the DOT abstract and the examination of the custodian of this record, and perhaps others, will either establish or fail to establish errors Lindholm maintains are present. Therefore, we decline to decide issues beyond that required in our reversal of the circuit court's decision not to bind Lindholm over for trial.


author: ROGGENSACK, J. DYKMAN, P.J.

text:
    Norman C. Danielson, Plaintiff-Joint-Appellant, Town of Burke, Intervening-Plaintiff-Joint-Appellant, v. City of Sun Prairie, Defendant-Respondent.
    Court of Appeals

      No. 99-2719.

      Submitted on briefs May 19, 2000.

    Decided September 28, 2000.

    2000 WI App 227
    (Also reported in 619 N.W.2d 108.)

      On behalf of the plaintiff-joint-appellant, the cause was submitted on the briefs of Timothy D. Fenner and Edith F. Merila of Axley Brynelson, LLP of Madison.
    On behalf of the intervening plaintiff-joint-appellant, the cause was submitted on the briefs of Karl L. Kliminski of Boushea, Segall, Joanis & Johnston of Monona.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Richard K. Nordeng of Stafford Rosenbaum LLP of Madison.
    Before Dykman, P.J., Eich and Roggensack, JJ.

       Petition to review denied.

   ROGGENSACK, J.

¶ 1. Norman Danielson and the Town of Burke appeal a judgment of the circuit court that concluded the City of Sun Prairie was relieved from seeking prior approval of the Town before the condemnation for or the construction of a City sewer interceptor on Danielson's property and that the City was not required to make a relocation order as the first step in its condemnation of Danielson's property. Because we conclude that'WlS. STAT. § 60.52 (1997-98) does not apply to the interceptor at issue here and that WlS. STAT. § 32.05(1) does not require the City to make a relocation order as the first step in the condemnation process, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. The City condemned for an easement to place a sewer interceptor for the City's sewer system on Danielson's property in the Town of Burke. Daniel-son commenced this lawsuit pursuant to WlS. STAT. § 32.05(5), alleging that the City did not have the right to condemn for an easement across his property. Danielson challenges the City's condemnation on two bases: (1) the City did not obtain Town approval, pursuant to Wis. Stat. § 60.52(1), before condemning his property; and (2) the City did not adopt a relocation order as its first step in the condemnation process. The Town was permitted to intervene in Danielson's action, and it claimed that the City was required to obtain the Town's approval under § 60.52(1) before it began constructing the interceptor.

¶ 3. The City contends that no approval from the Town was required prior to either condemnation or construction because the sewer interceptor is not a construction of the type referred to in WlS. Stat. § 60.52(1). The City also contends that even though it had taken certain actions, such as obtaining an appraisal before adopting the relocation order, the City did adopt the order before giving Danielson notice of the jurisdictional offer and before the actual taking of the real estate occurred, which is all that Wis. STAT. § 32.05 requires.

¶ 4. The circuit court concluded that Danielson and the Town were correct about permission being required prior to both condemnation and construction. However, it determined that the City was relieved of its obligation to obtain the Town's approval because the Town did not respond to a letter that the City sent to it. The City's letter asserted that, although the City believed no town-approval was required, it was nevertheless requesting it for the project. When the Town did not respond, the circuit court construed the lack of a response as a waiver. The circuit court also concluded that Wis. Stat. § 32.05 did not require the City to make a relocation order as the first step in the condemnation process. The Town and Danielson appeal.

DISCUSSION

Standard of Review.

¶ 5. This court applies the same summary judgment methodology as does the circuit court. See Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. See id. If we conclude that the complaint and answer join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. See id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether any material facts are in dispute which entitle the opposing party to a trial. See id. at 233, 568 N.W.2d at 34.

¶ 6. Here, both parties moved for summary judgment. Neither party disputed the facts which are material to the summary judgment motions. Therefore, the questions before us are those of statutory interpretation, or the application of statutes to undisputed facts, which we decide de novo. See Cemetery Servs., Inc. v. Department of Regulation and Licensing, 221 Wis. 2d 817, 823, 586 N.W.2d 191, 195 (Ct. App. 1998). Additionally, whether a statute is ambiguous is a question of law which we review without deference to the circuit court. See Awve v. Physicians Ins. Co. of Wisconsin, Inc., 181 Wis. 2d 815, 822, 512 N.W.2d 216, 218 (Ct. App. 1994).

Wisconsin Stat. § 60.52.

¶ 7. Wisconsin Stat. § 60.52 is central to this appeal, both in regard to the contentions raised by Danielson and to those raised by the Town. It provides:

(1) With the approval of the town board, any city or village adjoining a town may construct and maintain extensions of its sewer or water system in the town. An extension of a sewer or water system under this subsection is subject to s. 62.175(1) and the rights of abutting property owners.
(2) An abutting property owner who is permitted to connect with and use a sewer or water system constructed under sub. (1) may not be deprived of the use of the sewer or water system, except for nonpayment of water or sewer charges, without the approval of the town board.

¶ 8. The contentions of the parties require us to determine the meaning of the statutory phrase "extensions of its sewer or water system in the town." As we do so, our efforts are directed at determining and applying legislative intent. See Truttschel v. Martin, 208 Wis. 2d 361, 365, 560 N.W.2d 315, 317 (Ct. App. 1997). We begin with the plain meaning of the language used in the statute. See id. If the language is clear and unambiguous, our inquiry ends, and this court must apply that language to the facts of the case. See id. However, if the language used in the statute is capable of being understood by reasonably well-informed people in more than one way, we will determine legislative intent from the words of the statute in relation to its context, subject matter, scope, history, and the object which the legislature intended to accomplish. See id. at 365-66, 560 N.W.2d at 317.

¶ 9. The appellants and the respondent contend that the provision of Wis. Stat. § 60.52 at issue here, "extensions of its sewer or water system in the town," is capable of being understood in two different ways. Danielson and the Town contend that the dispositive phrase refers to any construction of a part of a sewer system that occurs within the physical perimeter of a town. The City contends the same phrase refers to any construction of a part of a sewer system that extends sewer service in a town. We agree that both interpretations are reasonable interpretations for well-informed people to make. Therefore, we conclude the statute is ambiguous.

¶ 10. To determine which interpretation best effects the intent of the legislature, we examine the statutory context within which this directive occurs, the history of the statute and the object the legislature intended to accomplish. See Truttschel, 208 Wis. 2d at 365, 560 N.W.2d at 317. In regard to the statutory context, we note Wis. Stat. § 60.52 appears in the PUBLIC WORKS AND PUBLIC SAFETY section of ch. 60, which generally deals with the authority of a town to provide or pay for services to a town's residents. We also note that subsec. (2) of § 60.52 refers to a property owner "who is permitted to connect with and use a sewer or water system constructed under sub. (1) . . . ." It is undisputed that the interceptor which the City has constructed does not permit a property owner to "connect with" or "use" the sewer because of the nature of the interceptor's design. Therefore, the extension "in the town" spoken to in subsec. (1) appears not to include the interceptor because the interceptor is not a part of a sewer system to which an abutting property owner can connect.

¶ 11. Wisconsin Stat. § 60.52 was revised by 1983 Wis. Act 532, § 7. A revised statute is to be given the same meaning as its predecessor unless the language chosen by the legislature clearly indicates a change in meaning is required. See WlS. STAT. § 990.001(7). Additionally, if the revision note states that the former statute's meaning is not changed, that note is indicative of legislative intent for the revised statute. See id. WISCONSIN Stat. § 60.29(16) (1981-82) was the predecessor to § 60.52. It provided in relevant part:

(16) Water mains and sewers of adjoining MUNICIPALITY. To grant to any adjoining city or village permission, in the extension of its water or sewage systems, subject to... the rights of abutting property owners, to lay and maintain water mains and sewers in any street or highway in the town, and no abutting property owner who is permitted to connect with and use any such water main shall be deprived of the use thereof, except as to the use of water for nonpayment of water charges, without the consent of the town board.

Section 60.29(16) (1981-82) focused on the use of water from a city's system by abutting property owners within the town where a city lays its water pipes. It did not address extensions of sewer or water that would not service abutting property owners. A legislative committee note states that it was not the intent of the legislature to change the meaning of § 60.29(16), but rather to also include an abutting property owner's use of a sewer constructed within a town. That note states:

NOTE: Restates s. 60.29(16), except that the current provision which prohibits depriving an abutting property owner from use of a water system is amended to include an abutting property owner's use of a sewer system.

Therefore, we conclude that the legislative history of §60.52 also supports a construction of the statute which does not include interceptors as "extensions of ... sewer or water system[s] in the town."

¶ 12. Finally, it makes sense that the legislature intended to recognize a town's interest in an extension of a city's sewer or water system in the town if the extension would have an impact on town residents, such as providing and charging for water or sewer service or reviewing the quality of service provided. Giving a town a right to prior approval for that type of an extension is a logical way for the legislature to have provided for a town's interest in ensuring that the needs of its residents are met. However, a town would have no similar interest if there were no financial or provision of services impact on town residents.

¶ 13. With the interceptor constructed on Daniel-son's property, the effect on the town resident is from the condemnation for the interceptor's easement, and ch. 32 provides for that interest in a uniform manner throughout the state. Therefore, we conclude that interpreting the "extensions of [a city's] sewer or water system in the town" as applying to extensions which can provide service to residents of the town effects the legislature's intent. Additionally, because towns have no home rule powers but only those powers specifically delegated to them by the legislature or necessarily implied therefrom, see Pugnier v. Ramharter, 275 Wis. 70, 73, 81 N.W.2d 38, 40 (1957), we conclude that the City was not required to seek Town approval prior to either the condemnation for or the construction of the interceptor at issue here.

Wisconsin Stat. § 32.05(1).

¶ 14. Most condemnations require that the condemning municipality make a relocation order pursuant to Wis. Stat. § 32.05(1). Danielson contends that the City lacked the right to condemn an easement for the interceptor because, although the City made a relocation order, it did not adopt it as the first step in the condemnation process. Here, it is undisputed that the City obtained an appraisal, informed Danielson of his right to obtain his own appraisal, and gave Daniel-son maps and pamphlets relating to the condemnation process before it adopted a relocation order. Danielson cites Andersen v. Village of Little Chute, 201 Wis. 2d 467, 549 N.W.2d 737 (Ct. App. 1996), Toombs v. Washburn County, 119 Wis. 2d 346, 350 N.W.2d 720 (Ct. App. 1984) and Wisconsin Town House Builders, Inc. v. City of Madison, 37 Wis. 2d 44, 154 N.W.2d 232 (1967) to support his contention. On the other hand, the City contends that it complied with § 32.05(1) because the statute does not require that the relocation order be the first step in the condemnation process. Because we conclude that § 32.05(1) clearly and unambiguously permits a condemning authority to take some steps before making a relocation order, we affirm the judgment of the circuit court.

¶ 15. Danielson's argument requires us to interpret Wis. Stat. § 32.05(1) to determine the intent of the legislature. See Town of Burke v. City of Madison, 225 Wis. 2d 615, 619, 593 N.W.2d 822, 823 (Ct. App. 1999). We begin with the plain language of the statute, and, if the statute is unambiguous on its face, generally we look no further. See id. Section 32.05(1) states in relevant part:

Relocation order, (a) Except as provided under par. (b), the ... city council... shall make an order providing for the laying out, relocation and improvement of the . . . storm and sanitary sewers . . . which shall be known as the relocation order. This order shall include a map or plat showing the old and new locations and the lands and interests required.
(b) No relocation order is necessary under par. (a) if the compensation, as estimated by the appraisal under sub. (2)(a), will be less than $1,000 in the aggregate.

¶ 16. We note that nothing within subsec. (1), on its face, requires that a relocation order be the first step in a condemnation process. Furthermore, para. (l)(b) presumes that an appraisal will be made before a relocation order because a relocation order is not required if the compensation due to the landowner is "estimated by the appraisal under sub. (2)(a), [to] be less than $1,000 in the aggregate." If the condemning municipality were required to make the relocation order as the first step, it would not have the information to determine whether to comply with para. (l)(a) or (l)(b). Additionally, and in contrast to the legislative directive of subsec. (1), subsec. (2)(a) does require that certain steps to be taken before making a jurisdictional offer. It provides:

Before making the jurisdictional offer provided in sub. (3), the condemnor shall attempt to negotiate personally with the owner. . . . Before attempting to negotiate under this paragraph, the condemnor shall provide the owner or his or her representative with copies of applicable pamphlets prepared under s. 32.26(6).

Therefore, we agree with the City that when the legislature intended to require the condemnor to use the ch. 32 process in a particular sequence, it clearly stated that intent.

¶ 17. Furthermore, we are not persuaded by the cases cited by Danielson to support his assertion that the courts have interpreted WlS. STAT. § 32.05(1) in a manner which requires a relocation order to be the first step in the condemnation process. Andersen concerned the question of whether the landowner's inverse condemnation claim should have been adjourned because the village "took its first tentative step toward initiating direct condemnation . . . when the board adopted a relocation order... ." Andersen, 201 Wis. 2d at 478, 549 N.W.2d at 741. The question of whether the village was required to make a relocation order as the first step in condemnation proceedings was never an issue in the case.

¶ 18. In Toombs, again, the timing of the relocation order was never a concern. The county had made the order at the commencement of the condemnation proceedings, but other factors about the order caused it to be invalid. See Toombs, 119 Wis. 2d at 347, 350 N.W.2d at 721. However, its invalidity was not the focus of the appeal; rather, the appeal focused on whether the landowner was entitled to litigation fees under Wis. Stat. § 32.28(3)(b) absent a valid relocation order. See id.

¶ 19. Also in Wisconsin Town House Builders, the timing of the relocation order was not necessary to the court's decision. The case turned on whether the city had to pay a landowner for lack of access to a limited-access road constructed along the plaintiffs property, when no roadway had existed prior to construction of the road for which the condemnation process was being used. See Wisconsin Town House Builders, 37 Wis. 2d at 50, 154 N.W.2d at 234-35. Therefore, we conclude that the City's relocation order provides no basis for Danielson's assertion that the City's condemnation process was defective.

CONCLUSION

¶ 20. Because we conclude that Wis. Stat. § 60.52 does not apply to the interceptor at issue here and that WlS. Stat. § 32.05(1) does not require the City to make a relocation order as the first step in the condemnation process, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

DYKMAN, P.J.

¶ 21. (dissenting). WISCONSIN Stat. § 60.52(1) (1997-98) provides:

With the approval of the town board, any city or village adjoining a town may construct and maintain extensions of its sewer or water system in the town.

¶ 22. The majority has concluded that what this statute really means is:

A city or village adjoining a town may construct an interceptor sewer within the town without the permission of the town board.

¶ 23. The way that the majority reaches its conclusion is to conclude that Wis. Stat. § 60.52(1) is ambiguous; that is, that the statute can reasonably be read in more than one way. Though clarity and ambiguity are occasionally in the eyes of the beholder, a statute is ambiguous if reasonable minds can understand it in more than one way. See Seider v. O'Connell, 2000 WI 76, ¶ 30, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 24. I believe that if the twenty-eight relevant words of WlS. Stat. § 60.52(1) were put to 100 persons on the street, 100 legislators, or 100 persons drawn randomly from the phone book, and the question were asked: "Must a city obtain approval from a town board to install a sewer on land within a town?" that at least ninety-eight members of each group would answer "yes." This, of course, assumes that these groups are composed of reasonable people. That aside, I do not believe that those twenty-eight words are susceptible to any answer but that town boards are not helpless when cities and villages adjoining them decide that they prefer to use town lands to bury their sewers. This would be a perfectly normal meaning to a perfectly normal statute found in a chapter of the statutes pertaining to towns. That is what the trial court concluded, and that is what I conclude.

¶ 25. The City of Sun Prairie's position, which the majority adopts, is that the twenty-eight words really refer only to the construction of the part of a sewer system that extends sewer service in a town. The reason why I part company with the City and the majority is that I cannot see how the concept of "hooking up to a sewer" is found within those twenty-eight words. The statute pertains to a "sewer or water system." The majority might have concluded that a sewer interceptor is not a "sewer or water system." This conclusion, though it runs aground on the facts, at least does not torture the English language. I do not find it possible, using the conventions of the English language, to bring within the twenty-eight operative words, the foreign concept of town residents being unable to drain their kitchen and bathroom waste water pipes into the city's interceptor. That concept is just not there.

¶ 26. The majority's answer to this is its conclusion: "We agree that both interpretations are reasonable interpretations for well-informed people to make." While I accept that this is a conclusion, I do not agree with it. Most inquiries into statutory meaning explain why a statute can be read one way or another. See, e.g., Kurylo v. Wisconsin Elec. Power Co., 2000 WI App 102, ¶ 7, 235 Wis. 2d 166, 612 N.W.2d 380. For example, in Kurylo, we explained, "[b]ecause the statute is silent regarding the time for filing the [certificates], it could reasonably be read to mean the [certificates] and conveyance must be filed simultaneously or that they may be filed at different times." Id. If there is no answer to the question "Why can the statute be read with two meanings?" it seems to me that the real answer is that the statute is unambiguous.

¶ 27. I need not examine the legislative history examined by the majority because having concluded that Wis. Stat. § 60.52(1) is clear, I may go no further on the question of statutory interpretation. See Seider, 2000 WI 76 at ¶¶ 49-50. In addition, I do not see how the town's silence was in reality its approval. I therefore respectfully dissent.

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

       A sewer interceptor is a large-diameter sewer pipe which is constructed deep in the ground and receives sewage from main-line sewers, but does not receive sewage from laterals or collectors. This interceptor carries sewage collected at one point in the City across Danielson's property in the Town to the sewage treatment plant, located in another part of the City.

       Because we have concluded that the City was not required to seek prior approval from the Town before either condemnation of Danielson's property or construction of the interceptor upon it, we do not reach the rationale for the circuit court’s decision, i.e., that the Town waived any right it had under WlS. Stat. § 60.52.

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