author: DEININGER, J.

text:
    Wayne R. Purdy, Plaintiff-Appellant, v. Cap Gemini America, Inc., Defendant-Respondent.
    Court of Appeals

      No. 00-3544.

      Submitted on briefs July 9, 2001.

    Decided October 4, 2001.

    2001 WI App 270
    (Also reported in 637 N.W.2d 763.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Kent I. Cornell and Lisa Pierobon Mays of Lawton & Cates, S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James F. Gebhart of Stroud, Willink & Howard, L.L.C., Madison.

      Before Vergeront, EJ., Roggensack and Deininger, JJ.

       Petition to review denied 1-29-02.

   DEININGER, J.

¶ 1. Wayne Purdy appeals an order dismissing his claim against Cap Gemini America, Inc., for attorneys' fees and costs. Purdy contends the circuit court erred in dismissing the action because the fees are based on a contract and are thus not governed by Wis. Stat. § 806.06(4) (1999-2000). We disagree and affirm.

BACKGROUND

¶ 2. The present litigation is the aftermath of a lawsuit brought by Cap Gemini against Purdy in 1996 alleging the breach of a non-competition covenant in his employment contract. Purdy left Cap Gemini in 1995 to work for another former employee of Cap Gemini. Cap Gemini filed suit against both Purdy and his new employer, alleging a breach of their respective covenants not to compete, after learning that they were competing against it. Purdy obtained summary judgment in his favor, dismissing the lawsuit against him, and Cap Gemini appealed. We affirmed the circuit court's action, concluding that the non-competition clause in Purdy's employment contract was unenforceable because it was not reasonably necessary for Cap Gemini's protection. Cap Gemini America, Inc. v. Ringstad, No. 96-2814, unpublished slip op. (Wis. Ct. App. Aug. 7, 1997).

¶ 3. In 1999, Purdy brought a motion in the action from which he had been dismissed some three years earlier. In it he requested "payment of the reasonable attorney fees and costs" he "incurred in defending and prevailing in" the Cap Gemini suit. Purdy based his motion on a provision in the parties' employment agreement which provided as follows:

You agree that, in the event of a breach of any covenant contained herein, the remedies available at law for such breach will be inadequate and that CAP GEMINI shall be entitled to injunctive or other equitable relief in any action or proceeding to enforce any such covenant. Furthermore, the parties agree that all expenses (including reasonable attorneys' fees and disbursements) of the prevailing party in any such action or proceeding shall, on demand of the prevailing party, be paid by the non-prevailing party.

(Emphasis added.)

¶ 4. The circuit court concluded that the disposi-tive issue was whether it had jurisdiction to rule on Purdy's motion, and the court determined that it did not because our decision in Cap Gemini America had "finally concluded the action between Cap Gemini and Defendant Purdy." Purdy did not appeal the denial of his motion in the original action. Instead, he filed the present action, alleging that Cap Gemini had breached the employment agreement by failing to pay his attorneys' fees and costs in defending the original action. Cap Gemini moved to dismiss Purdy's complaint for failure to state a claim. See Wis. Stat. § 802.06(2)(a). In support of its motion, Cap Gemini argued that Purdy's claim for attorneys' fees and costs was untimely under Wis. Stat. § 806.06(4), and further that the new action was barred by claim preclusion.

¶ 5. The circuit court granted Cap Gemini's motion, dismissing Purdy's action with prejudice. The court concluded that under Wis. Stat. § 806.06(4), Purdy should have requested his attorneys' fees and costs within thirty days of the judgment in his favor in the original action, and further that Purdy's claim was barred by the doctrine of claim preclusion. Purdy appeals the circuit court order dismissing his action.

ANALYSIS

¶ 6. We review a circuit court's dismissal for failure to state a claim de novo, accepting as true the facts alleged in the complaint and the reasonable inferences drawn from those facts. Town of Eagle v. Christensen, 191 Wis. 2d 301, 311-12, 529 N.W.2d 245 (Ct. App. 1995). We must liberally construe the complaint, and we will affirm the dismissal of a claim only if" 'it is quite clear that under no conditions can the plaintiff recover.' " Id. at 311 (citations omitted).

¶ 7. We must decide whether a claim for attorneys' fees based on a provision in a contract is governed by the six-year statute of limitations governing contract actions, as Purdy contends, or the thirty-day time limit for requesting costs set forth in Wis. Stat. § 806.06(4), as Cap Gemini argues and the trial court concluded. Section 806.06(4) provides as follows:

A judgment may be rendered and entered at the instance of any party either before or after perfection. If the party in whose favor the judgment is rendered causes it to be entered, the party shall perfect the judgment within 30 days of entry or forfeit the right to recover costs. If the party against whom the judgment is rendered causes it to be entered, the party in whose favor the judgment is rendered shall perfect it within 30 days of service of notice of entry of judgment or forfeit the right to recover costs ....

(Emphasis added.) Our initial inquiry is thus whether the contractually-based attorneys' fees requested by Purdy are "costs" within the meaning of § 806.06(4).

¶ 8. The issue appears to be one of first impression, and its resolution involves a question of statutory interpretation. Our goal in interpreting a statute is to determine and give effect to the intent of the legislature. DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). Where the language chosen by the legislature is clear and unambiguous, we arrive at the intent of the legislature by "giving the language its plain, ordinary and accepted meaning." State v. Mendoza, 96 Wis. 2d 106, 114, 291 N.W.2d 478 (1980). If a statute clearly sets forth the legislative intent, we simply apply the statute to the facts presented. Cox v. DHSS, 184 Wis. 2d 309, 316, 517 N.W.2d 526 (Ct. App. 1994). If, however, the language of a statute is ambiguous, we must look beyond its language and examine such things as its scope, history, context, subject matter, and purpose. UFE Inc. v. LIRC, 201 Wis. 2d 274, 281-82, 548 N.W.2d 57 (1996).

¶ 9. We conclude that, because the term is not defined in the statute, we must look beyond the language of Wis. Stat. § 806.06(4) in order to determine what is included in the "costs" which a prevailing party must request within thirty days of the entry of a judgment or forfeit the right to recover. In doing so, we conclude that a related statute, and an opinion of the Wisconsin Supreme Court interpreting it, are of assistance in determining the scope and subject matter of § 806.06(4). Wisconsin Stat. § 814.04 provides, in relevant part, as follows:

[W]hen allowed costs shall be as follows:
(2) DISBURSEMENTS. All the necessary disbursements and fees allowed by law ....

The supreme court examined this language in Hartman v. Winnebago County, 216 Wis. 2d 419, 574 N.W.2d 222 (1998), in the context of a dispute over the timeliness of a request for attorneys' fees.

¶ 10. The issue in Hartman was whether a plaintiff who prevails in a state court action raising a federal civil rights claim must seek an attorneys' fees award under 42 U.S.C. § 1988 within the time limitation set forth in Wis. Stat. § 806.06(4). The court concluded that the plaintiff must in fact do so "or forfeit the right to recover those costs." Id. at ¶ 2. The federal statute provides that "[i]n any action or proceeding to enforce [various federal civil rights statutes] the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." Id. at ¶ 12 n.6. In its analysis, the court noted:

There are three rules that could govern the time requirement for requesting attorneys' fees under 42 U.S.C. § 1988(b): (1) Wis. Stat. § 806.06(4), which requires that a judgment be perfected (i.e., costs taxed and inserted in the judgment) within 30 days of the entry of judgment (or notice of entry of judgment, depending upon which party causes the judgment to be entered) or recovery of costs is forfeited; (2) Rule 54(d) of the Federal Rules of Civil Procedure, which requires that a motion for attorneys' fees be brought within 14 days of the entry of judgment; or (3) the common law rule set forth in White, 455 U.S. at 454 ... which holds that a motion for attorneys' fees is timely unless it "unfairly surprises or prejudices the affected party."

Id. at ¶ 18.

¶ 11. The court went on to "recognize" that the use of the word "cost" in the federal statute did not conclusively establish that the attorneys' fees should be deemed a taxable "cost" under Wis. Stat. § 806.06(4). Id. at ¶¶ 23-24. Rather, the court concluded that it must "determine if any Wisconsin statute authorizes an award of attorneys' fees under § 1988 as a taxable cost." Id. at ¶ 25. It then examined the language of Wis. Stat. § 814.04(2) providing that "statutorily approved costs include '[a]ll the necessary. . . fees allowed by law.'" Id. at ¶ 26. The court concluded that the attorneys' fees authorized under the federal statute "are allowed by law" and that they "are a 'necessary' cost of litigation to which a prevailing party is entitled." Id. at ¶ 27.

¶ 12. Accordingly, the supreme court held that "attorneys' fees must be taxed and inserted in the judgment within 30 days of the entry of judgment or notice of entry of judgment pursuant to Wis. Stat. § 806.06(4)." Id. at ¶ 30. The court pointed out that its holding did "not negate the recognition that an award of attorneys' fees based upon the status of a prevailing party is a consideration separate from the underlying merits of the cause of action," and it acknowledged that parties could stipulate "to postpone the issue of attorneys' fees or seek[] to stay the proceedings" pending an appeal. Id. Because the plaintiff in Hartman sought neither an award of actual attorneys' fees, nor to have the issue postponed, until many months had elapsed after the entry of judgment and its affirmance on appeal, the court declared the attorneys' fees request "untimely." Id. at ¶ 37 n.12.

¶ 13. Purdy contends that the rationale of Hartman should not govern the present facts. He notes that his request for actual attorneys' fees is based on a contract, not a statute, and that the request in Hartman was made pursuant to 42 U.S.C. § 1988 which specifically provides that § 1988 attorneys' fees are "costs." However, we conclude that the proffered distinctions are unavailing. As we have noted, the supreme court did not find the use of the word "cost" in the federal statute decisive in Hartman, but focused instead on whether the requested attorneys' fees were "allowed by law" and whether they represented a " 'necessary' cost of litigation to which a prevailing party is entitled" under Wis. Stat. § 814.04(2). Id. at ¶¶ 26-27. After making the same two inquiries regarding the fees Purdy seeks to recover, we arrive at the same result reached by the supreme court in Hartman.

¶ 14. The contractual provision on which Purdy relies provided that he and Cap Gemini had agreed that "all expenses (including reasonable attorneys' fees and disbursements) of the prevailing party in any [action or proceeding to enforce any . . . covenant in the employment agreement] shall, on demand of the prevailing party, be paid by the non-prevailing party." The action Cap Gemini brought against Purdy was to enforce a covenant in the employment agreement, and Purdy became the prevailing party in that action. By first moving the original trial court for his attorneys' fees, and later by commencing this action, Purdy has asserted an entitlement to recover his actual expenses in successfully defending against Cap Gemini's action. That is, Purdy is pursuing a legally enforceable claim to be reimbursed the actual attorneys' fees he incurred in the prior litigation. See, e.g., Kremers-Urban Co. v. American Employers Ins., 119 Wis. 2d 722, 744, 351 N.W.2d 156 (1984) (noting that "a statute or enforceable contract" may render attorneys' fees recoverable, notwithstanding the general "American rule" that each party to a lawsuit must bear its own costs of litigation).

¶ 15. We can find no basis to conclude that the fees Purdy claims under his employment agreement are any less "allowed by law" or a "necessary cost of litigation" than were the fees sought by the plaintiff in Hartman. Nothing in Wis. Stat. § 814.04, or in the supreme court's analysis of that section in Hartman, suggests that a distinction should be made between a claim for attorneys' fees based on a contract as opposed to one based on a statute. If a party's contractual entitlement to actual attorneys' fees is contested, we see no reason why a dispute regarding a party's entitlement to fees, or the reasonable amount thereof, cannot be addressed within the context of Wis. Stat. § 806.06(4). This could occur, either by a timely objection and judicial resolution of the issue under Wis. Stat. § 814.10, or, as the supreme court noted in Hartman, by a timely request to postpone consideration of the fees issue until such time as the dispute may be fully resolved.

¶ 16. Purdy relies on Rissman v. Owen, 229 F.3d 586 (7th Cir. 2000), and Capital Asset Research Corp. v. Finnegan, 216 F.3d 1268 (11th Cir. 2000), for his contention that a statutory time limit on requests for attorneys' fees should not apply "where the substantive law governing the action" is based on contract law. These cases are readily distinguishable from the present facts, however. In the latter case, not only did the identity of the "prevailing party" change after a successful appeal, thereby rendering the fourteen-day federal cost recovery statute inapplicable to the originally entered judgment, but the parties had stipulated during the trial of the matter "to the bifurcation of attorneys' fees for later hearing," as the supreme court in Hartman acknowledges parties may do. Capital Asset Research Corp., 216 F.3d at 1271-72. Rissman has even less to say about the question now before us, except perhaps for the court's comment that "[f]ees for work done during the case should be sought after decision, when the prevailing party has been identified and it is possible to quantify the award." Rissman, 229 F.3d at 588. We wholeheartedly agree with this proposition, and it in no way detracts from our conclusion that Wis. Stat. § 806.06(4) governs the timing of Purdy's claim for attorneys' fees.

¶ 17. Purdy also asserts that applying § 806.06(4) to his contract-based claim for attorneys' fees improperly overrides the six-year statute of limitations for contract actions. See Wis. Stat. § 893.43. We disagree. The six-year statute of limitations governs contract actions generally, while Wis. Stat. § 806.06(4) provides a time limit which specifically governs the recovery by a party of costs incurred in a given lawsuit. .A "cardinal rule" of statutory construction provides that, when two statutes arguably overlap, the statute which more specifically addresses the issue at hand controls. Jones v. State, 226 Wis. 2d 565, 576, 594 N.W.2d 738 (1999).

¶ 18. We conclude, as well, that policy considerations underlying Wis. Stat. § 806.06(4) support its application here in preference to the general, six-year limitation for contract actions under Wis. Stat. § 893.43. The circuit court that presides over the litigation has the expertise and best opportunity to fully consider the matter of attorneys' fees requested by a prevailing party. First Wisconsin Nat'l Bank v. Nicolaou, 113 Wis. 2d 524, 537, 335 N.W.2d 390 (1983). That court is keenly aware of the amount of time consumed by an action and of the nature and complexity of the issues raised. Tesch v. Tesch, 63 Wis. 2d 320, 334-35, 217 N.W.2d 647 (1974). In addition, the court has the opportunity to observe all of the work which has gone into an action from its commencement, as well as to assess the quality of the services rendered by counsel. Id.

¶ 19. Thus, it is highly appropriate to require that attorneys' fees requests be brought before the court that entered judgment, and further, that this be done promptly, while the relevant facts and factors are still fresh in the minds of the trial judge, the parties, and their counsel. This is especially true given that the reasonableness of requested attorneys' fees is not always easily ascertainable and is often subject to dispute. The present trial court well expressed these policy considerations when it granted Cap Gemini's motion to dismiss Purdy's action:

I've had nothing to do with this case in any way, shape or form .... We have the same parties, we have basically the same kinds of issues ... and so I do believe that when we're talking about costs, then certain procedures apply. The procedures are statutory, the procedures are found in 806.06 sub. 4... . And I think part of the reason is the difficulties we're facing here aside from having a court that would have a great deal of trouble having to judge the reasonableness of the fees that are being requested, we also have very stale information in terms of defending against it. I think these are the kinds of detailed issues which the courts and I think attorneys want to address while matters are far fresher and that certainly cannot be said today.

¶ 20. In short, Purdy's position leads to an unreasonable result. Purdy would have us permit a party to commence a. separate action for attorneys' fees incurred in prior litigation, for up to six years following a judgment, thereby requiring a judge who may be completely unfamiliar with the case, or many months or years removed from it, to make a determination as to the reasonableness of the attorneys' fees requested. For this reason as well, we reject the contention that the six-year statute should apply on the present facts in lieu of Wis. Stat. § 806.06(4). Because we conclude that Purdy's claim for attorneys' fees is untimely under § 806.06(4), we do not address whether his claim is also barred under the doctrine of claim preclusion.

CONCLUSION

¶ 21. For the reasons discussed above, we affirm the order of the circuit court dismissing Purdy's action.

By the Court. — Order affirmed.

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

       Circuit Judge C. William Foust entertained and denied Purdy's motion. Judge Foust succeeded Circuit Judge George Northrup in Branch 14 of the Dane County Circuit Court. Judge Northrup had presided over Cap Gemini's action in 1996.

       The present action was assigned to Circuit Judge Moria Krueger, Branch 7, Dane County Circuit Court.

       Wisconsin Stat. § 806.06(l)(c) provides that "[a] judgment is perfected by the taxation of costs and the insertion of the amount thereof in the judgment."

       The Eleventh Circuit observed in Capital Asset Research Corp. v. Finnegan, 216 F.3d 1268 (11th Cir. 2000), that in the trial of the underlying breach of contract action, "the contract was in evidence and expressly provided for attorneys' fees for the prevailing party, and only the identity of the prevailing party had to be established before that party's right to attorneys' fees became manifest." Id. at 1272. The court's observation lends support to our conclusion here that, even though based on a contract rather than a statute, the attorneys' fees Purdy seeks are "allowed by law," given that Purdy's "right to attorneys' fees became manifest" once it was determined that he was the prevailing party in the original Cap Gemini action.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    City of Milwaukee, Plaintiff-Respondent, v. Michelle M. Burnette, Yolanda C. Jenkins, Vivian V. Nicholson, Theresa A. Roth, and Patricia Wheeler, Defendants-Appellants, Tanya M. Bean, Marvin T. Blount, Tracy A. Blue, Jansee R. Boens, Schonda F. Butcher, Teresa M. Chojnacki, Deborah A. Darby, Ruthann Dzibinski, Carmen M. Estrada, Gloria J. Fulford, Marsha A. Greene, Patricia A. Greer, Kelly J. Hirschfied, Lora I. Hudson, Faith A. Jefferson, Sandra Jefferson, Precious L. Johnson, Candice K. Kane, Mary B. Koller, Linda J. Kroeck, Tammie L. Lasko, Therese S. Lumley, Annette M. Matthews, Christine S. McEvoy, Evelyn Melendez, Joy R. Nevels, Juantean L. Nolan, Valerie D. Pagan, June M. Paquette, Victoria L. Pharr, Linda A. Pionter, Michelle Profit, Linda M. Prophett, Carmen Rodriguez, Kim M. Rossettie, Lisa A. Ruiz, Lynette D. Sechrest, Mary L.Sandlin, Tanya R. Sears, Cynthia F. Singh, Melissa A. Tavidian, Trina M. Thomas, Maria J. Vazquez, Denise A. West, Bobbie J. Williams, Tonni R. Wilson, Terry A. Wuerzberger, Linda M. Yoebstl, Christine Adams, Lakesa L. Anderson, Doreen Arvelo, Veronica L. Batton, Melissa Berry, Patricia Burgess, Cynthia M. Cook, Pamela D. Cook, Lillian J. Feliciano, Rose M. Garcia, Tara Greenwood, Marie T. Guyton, April R. Hancock, Lacretha Jackson, Gerry S. Kearney, Terri J. Martin, Lisa A. Mayes, Theresa A. Northern, Otis Rawls, Jr., Yoland D. Redditt, Linda D. Robinson, Carmen M. Taylor, Debra L. Williams, Luberta Williams, Loteria H. Willis, Marsha Vann, Diane M. Williams, Genoria Morris, Carol R. Titra, Jacqulynn E. Frazer, Sandra Butler, Debbie R. Eichorn, Darlene M. Manns, Lisa M. Gardner, Danita L. Henderson, Genice B. Jackson, Jennifer R. Wright, Carolyn A. Wynos, Debra S. Blachowski, Helaine D. Burks, Dawn M.Camus, Karen A. Chirpke a/k/a Karen A. Zembrzuwski, Jennifer L. Curtis, Sheila C. Hinton, Patricia D. Holmon, Gerry S. Kearney, John W. Keepers, Joy L. Landgraf, Polly A. Lausch, Lara L. Lewis, Cheryl A. Marunowski, Patricia A. McCoy, Evelyn Melendez, Floura L. Owens, Lorraine Perry, Sheila M. Pocan, Helen M. Poe, Cheryl Y. Pope, Laurie A. Powell, Kimberly D. Prather, Lucy M. Santana, Manessa L. Smith, Rosanna M. Wheeler, Marie A. Wison a/k/a Marie Kosmicki, and Sharon L. Winzer, Defendants.
    Court of Appeals

      No. 00-2308.

      Submitted on briefs September 4, 2001.

    Decided October 9, 2001.

    2001 WI App 258
    (Also reported in 637 N.W.2d 447.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Pamela S. Moorshead of Buting & Williams, S.C., Brookfield.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and David R. Halbrooks and Genevieve O'Sullivan-Crowley, assistant city attorneys, Milwaukee.
    Before Wedemeyer, EJ., Fine and Schudson, JJ.

       Petition to review denied 12-17-01.

   FINE, J.

¶ 1. Michelle Burnette, Yolanda Jenkins, Vivian Nicholson, Theresa Roth, and Patricia Wheeler appeal from a judgment permanently enjoining them from engaging in prostitution-related activities within certain specified areas in the City of Milwaukee; namely:

• "Engaging in, beckoning to stop, or engaging male or female passersby in conversation, or stopping or attempting to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture, or yelling in a loud voice";
• "Having or offering to have or requesting to have nonmarital sexual intercourse for anything of value; committing or offering to commit an act of sexual gratification, in public or private, involving the sex organ of one person and the mouth or anus of another for anything of value; masturbating a person or offering to masturbate a person for anything of value; and committing or offering to commit or requesting to commit an act of sexual contact for anything of value";
• "Walking off public sidewalks into the City streets to meet occupied motor vehicles to discuss any activity listed [in the immediately preceding bulleted paragraph] or to direct the ve-hide operator acting in concert with the [person subject to the injunction] to a destination other than the point of initial contact between the [person subject to the injunction] and the operator such as directing the vehicle off of a high volume traffic street to a more secluded street in which the [person subject to the injunction] walks to the vehicle and then enters the vehicle at the new vehicle location";
• "Waiting at bus stops for more than one cycle of busses [sic] or waiting at bus stops with no money or bus transfers on their person or standing at pay phones for lengthy periods of time without making an actual telephone call";
• "Loitering in doorways of businesses whether open or closed, sitting on the porch or standing anywhere on private residential property without the permission of the property owner or a legal resident of the property";
• "Standing, sitting, walking, driving, gathering or appearing anywhere in public view within 25 (twenty-five) feet of any other [person subject to the injunction] engaged in any of the above listed activities."

The injunction was entered by the trial court on an amended complaint filed by the City alleging that the appellants were prostitutes and that their prostitution activities in specified areas were a "public nuisance" under Wis. Stat. § 823.02. Section 823.02 authorizes a "city" to bring "[a]n action to enjoin a public nuisance."

¶ 2. The case was decided on summary judgment. In support of its motion for summary judgment, the City submitted the following evidentiary material:

1. An affidavit executed in February of 2000 by a Milwaukee police officer assigned to the Vice Control Division averring that:

• the appellants had been previously arrested for prostitution;
• that he had seen Burnette "approximately six times in the past year loitering and flagging down cars"; and
• that "[o]n several of these occasions, Ms. Burnette fled the scene after recognizing me while I was working as an undercover officer."

None of these averments was disputed by the appellants.

2. An affidavit executed in July of 1998, by the same officer averring that:

• the police department gets "public complaints regarding street prostitution," including "complaints about prostitution on the City streets" and "complaints about prostitutes working on adjoining properties or even on the complainant's own property";
• "the type of enforcement required to control street prostitution" is dangerous because the "officers are required to work singularly undercover" and cannot "wear bullet proof vests or sidearms while interacting with the street prostitutes" because the officers "are required to appear as prostitution customers";
• street prostitutes frequently "carry weapons," including "sharpened metal objects," knives with long blades, and "razor blades," and the officers are vulnerable to attack because they are undercover.

None of these averments was disputed by the appellants.

3. The testimony from a City police captain in charge of the Vice Control Division. The captain told the trial court that when he drives down streets in areas where his officers are operating, prostitutes, not aware that he is a police officer, try to get his attention by yelling or waiving at him, and, indeed, that some were "actually jumping up and down to gain [his] attention." He also testified that he "often" sees those whom he believes are "customers for prostitutes driving up and down the streets" and that they would drive "very slowly in the right hand lanes, constantly looking at the sidewalk, stopping, slowing down, when they see a single female walking." He said that he sees "the girls or ladies on the street sometime making the initial contact with the cars that are stopping and passing."

None of this testimony was disputed by the appellants.

¶ 3. The police captain also testified that he has "seen prostitutes that I've picked up standing at bus stops, standing at pay phones, acting like they're talking on the phone." He explained that they were "acting" because he never would see them "actually talking," but, rather, "be on the phone for like 45 minutes and just listening .. . constantly looking around." He never saw them put any money into the coin operated telephones. He also told the trial court that the prostitutes would wait at bus stops, but never get on any of the buses, and that they would linger on private property, "standing in doorways, closed and open businesses."

None of this testimony was disputed by the appellants.

4. Testimony from a person who rehabilitates and manages rental property in one of the areas included in the injunction. He told the trial court that prostitution drives away prospective tenants who, when "they see prostitutes and drug addicts on the street.. . won't even come in to see the apartments despite all the work we've done." He also testified that he loses tenants who have moved in because of prostitution activity in the area.

None of this testimony was disputed by the appellants.

5. Testimony from a woman who lives in one of the areas included in the injunction that she does not feel comfortable leaving her apartment without either her two large dogs or her boyfriend "because it's happened many, many times where I've been approached, asked what I will do for ten dollars, or just other basic questions about assuming that I'm a prostitute because of where I live, and because I'm on the streets."

None of this testimony was disputed by the appellants.

¶ 4. Although the appellants were joined as defendants after the trial court held the evidentiary hearing, and thus did not have the chance to either cross-examine or present evidence, they did not ask the trial court either to re-open the hearing or to hold a new hearing. Rather, they submitted affidavits executed by two of them, Burnette and Jenkins, on March 2, 2000, as well as one executed by Eleanor Miller, Ph.D., an assistant professor of sociology and former chair of the sociology department at the University of Wisconsin--Milwaukee.

¶ 5. The affidavits of Burnette and Jenkins did not dispute any of the averments or testimony we have excerpted. Rather, they indicated that the injunction sought by the City would interfere with their ability to live their lives in peace and to interact with friends and family members. They both expressed concerns that they would violate the injunction if they spoke to someone who might be a prostitute even though they did not know it. They both also averred, in identical language: "I am confused by what the injunction requires of me." Burnette also explained that she knows that "many poor women in Milwaukee have had arrests for prostitution because they have no alternatives financially or were addicted to drugs or alcohol." They both indicated in their affidavits that once they were released from the Milwaukee County Jail, where they were at the time they executed the affidavits, that they did not intend to prostitute themselves again.

¶ 6. Dr. Miller has been studying prostitutes since 1978, and, according to her affidavit, wrote a nationally recognized treatise on prostitutes, Street Woman. Additionally, her affidavit establishes her expertise under Wis. Stat. Rule 907.02 in "social science methodology for qualitative field research." She did not dispute any of the City's evidentiary material that we have excerpted. Rather, she challenged the City's attempt to show a connection between prostitution and drugs, crime, and disease. Additionally, Dr. Miller avers, contrary to the City's contention, that prostitutes do not act in concert.

¶ 7. For the reasons we explain below, we affirm in part, reverse in part, and remand with directions that the trial court modify the injunction.

A.

¶ 8. Summary judgment is used to determine whether there are any disputed facts that require a trial, and, if not, whether a party is entitled to judgment as a matter of law. Wis. Stat. Rule 802.08(2); U.S. Oil Co. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 86, 440 N.W.2d 825, 827 (Ct. App. 1989). Of course, "summary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear." Lecus v. American Mut. Ins. Co. of Boston, 81 Wis. 2d 183, 189, 260 N.W.2d 241, 243 (1977). Our review of a trial court's grant of summary judgment is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). Thus, although the trial court may have relied on some of the evidentiary matters presented to it by the City that are disputed by Dr. Miller's affidavit, we decide this appeal only on the evidentiary record that is not disputed, bearing in mind that the ultimate decision whether to grant or to deny a requested injunction lies within the reasoned discretion of the trial court. See State v. H. Samuels Co., 60 Wis. 2d 631, 635, 211 N.W.2d 417, 419 (1973) (whether to grant or deny request for injunction is discretionary); State v. Seigel, 163 Wis. 2d 871, 889, 472 N.W.2d 584, 592 (Ct. App. 1991) (trial court's discretionary determination whether to issue a nuisance-abatement injunction will be upheld on appeal if it is "based upon the facts appearing in the record and in reliance on the appropriate and applicable law.").

¶ 9. Prostitution is illegal in Wisconsin. Wis. Stat. § 944.30. Loitering or soliciting for purposes of prostitution is also illegal. Wis. Stat. § 947.02(3) (declaring that a person is guilty of a Class C Misdemeanor if he or she is "[a] prostitute who loiters on the streets or in a place where intoxicating liquors are sold, or a person who, in public, solicits another to commit a crime against sexual morality"). Injury to the public "in its civil or property rights or privileges or in respect to public health to any degree" constitutes a "public nuisance." H. Samuels Co., 60 Wis. 2d at 638, 211 N.W.2d at 420. Although "equity will not enjoin a crime because it is a crime," the mere fact that acts that injure the public are criminal "does not bar injunctional relief." Id., 60 Wis. 2d at 636, 211 N.W.2d at 419.

¶ 10. An injunction may be no more broad than is "equitably necessary." Seigel, 163 Wis. 2d at 890, 472 N.W.2d at 592. This is similar to the test that is also applied when constitutional rights are implicated: that the injunction may not burden those rights any more "than necessary to accomplish its goal," rather than the "strict scrutiny" test the appellants propose. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 764-768 (1994) (speech).

B.

¶ 11. The initial issues presented by this appeal are whether, based on the City's evidentiary submissions that have not been controverted, prostitution activities in the areas encompassed by the permanent injunction sufficiently injure the public to constitute a nuisance, and, if so, whether injunctive relief entered by the trial court was reasonably related to abatement of the nuisance. If these initial hurdles are cleared, we have to assess whether the injunction entered by the trial court deprived the appellants of their constitutional rights.

¶ 12. As we have seen, there is no dispute in this case:

that prostitutes frequent the areas encompassed by the permanent injunction;
that persons living and working in those areas have complained to the police department about the prostitution-related activity, and are, in fact, harmed by that activity;
that although it is illegal for a person to solicit or commit acts of prostitution, and to loiter on streets for purposes of prostitution, undercover law-enforcement officers face significant hazards in their efforts to gather evidence that persons whom they suspect of engaging in prostitution are, in fact, violating the anti-prostitution laws.

Further, we may take judicial notice of the harm that endemic prostitution activity has on a community. See State v. J.C. Penney Co., 48 Wis. 2d 125, 155, 179 N.W.2d 641, 657 (1970) (appellate court may take judicial notice of the extent of practice that harms the public) ("widespread use of the revolving charge account and of the large number of Wisconsin citizens affected by these practices"); Wis. Stat. Rule 902.01(3) (court may take judicial notice "whether requested or not"); Wis. Stat. Rule 902.01(6) ("Judicial notice may be taken at any stage of the proceeding.").

¶ 13. Although it is true, as the appellants argue, that the infusion of prostitution in the affected areas can, on one level at least, be addressed by the enforcement of the laws making that and related activity illegal, the difficulties and dangers inherent in that route make injunctive relief appropriate because enforcement of the injunction can be done by police officers in uniform with adequate means of self-protection. Additionally, although the individual appellants are but a small part of the problem, the same is true of all the persons prostituting themselves in the affected areas. A rule that prohibited injunctive relief against a person acting independently but whose independent acts when combined with the independent acts of others created a public nuisance, merely because the person was acting independently, would render this type of public nuisance immune to effective redress. Accordingly, the trial court had the authority to issue an injunction to abate the appellants' role in what the undisputed evidentiary submissions prove is a public nuisance.-

C.

¶ 14. We now turn to the appellants' argument that the permanent injunction violates their constitutional rights. They contend that specific parts of the injunction are unconstitutionally vague, that they violate their right of association, that they violate their rights to freedom of speech and assembly, and that they violate their right to freedom of movement in public places. We address their contentions in turn and assess whether the burdens imposed by parts of the injunction they attack are greater than they need be, which, as noted, is the standard we must apply. See Madsen, 512 U.S. at 764-768. We do not, however, discuss whether parts of the injunction that appellants have not challenged specifically and targeted with developed argument violate any of their rights. See Reiman Assocs. v. R/A Adver. Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292, 294 n.1 (Ct. App. 1981) (contentions not briefed are waived); Barakat v. Dep't of Health & Soc. Servs., 191 Wis. 2d 769, 786, 530 N.W.2d 392, 398-399 (Ct. App. 1995) (appellate court need not consider "amorphous and insufficiently developed" arguments).

1. Vagueness.

¶ 15. Appellants contend that the parts of the injunction that prohibit loitering in the doorways of the private property of others, that prohibit loitering at bus stops and pay phones, and that impose a twenty-five foot no-intrusion radius from any other person who may he violating any provisions of the injunction are unconstitutionally vague. We agree in part and disagree in part with their contentions.

¶ 16. We have discussed previously the standards that determine whether governmental regulation of conduct is impermissibly vague:

A law regulating conduct must give adequate notice of what is prohibited, so as not to delegate "basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis." Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). Thus, "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connolly v. General Constr. Co., 269 U.S. 385, 391 (1926). Although the enactment must have "a reasonable degree of clarity," Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984), exacting precision is not required, Grayned , 408 U.S. at 110, unless the enactment infringes rights that are specifically protected by the constitution, such as those of free speech and association protected by the First Amendment, Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). In short, if a statute or ordinance does not directly affect constitutionally-protected interests, we may not hold it facially-invalid for vagueness even though "doubts as to the applicability of [the challenged] language in marginal fact situations may he conceived." See United States v. Powell, 423 U.S. 87, 93 (1975).

Dog Fed'n of Wisconsin, Inc. v. City of S. Milwaukee, 178 Wis. 2d 353, 359-360, 504 N.W.2d 375, 377-378 (Ct. App. 1993) (alteration in original). Both parties recognize that these principles apply to injunctions as well as statutes or ordinances.

a. Loitering in doorways. Contrary to the appellants' contention, there is nothing vague about the injunction's prohibition against "[ljoitering in doorways of businesses whether open or closed, sitting on the porch or standing anywhere on private residential property without the permission of the property owner or a legal resident of the property." The prohibitions are clear and easy to obey. See also City of Milwaukee v. Nelson, 149 Wis. 2d 434, 447, 439 N.W.2d 562, 566-567 (1989) (recognizing, in the context of a challenge to the constitutionality of an anti-loitering ordinance, that the ordinance was constitutional because: "One is not in violation of the ordinance by just 'loitering.' Rather, one must be loitering or prowling 'in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity.'").

b. Loitering at bus stops or pay phones. Similarly, we reject appellants' argument that the injunction's prohibition against "[wjaiting at bus stops for more than one cycle of busses [sic] or waiting at bus stops with no money or bus transfers on their person or standing at pay phones for lengthy periods of time without making an actual telephone call" is impermis-sibly vague. Although appellants quibble about what "one cycle" of buses means, the prohibition in this portion of the injunction also gives fair notice and is easy to obey.

c. Twenty-five foot restriction. Appellants also challenge the provision of the injunction that prohibits them from "[sjtanding, sitting, walking, driving, gathering or appearing anywhere in public view within 25 (twenty-five) feet of any other [person subject to the injunction] engaged in any of the [activities proscribed by the injunction]." We agree that this provision does not give to the appellants fair warning of prohibited conduct. There is nothing in the record that indicates that any of the appellants are sufficiently familiar with all those subject to the injunction so that compliance with this provision would not be a haphazard, guessing adventure. Indeed, Jenkins's affidavit avers that she does "not know more than a few of the defendants to this action." The City does not dispute this. Similarly, Burnette's affidavit avers that she is "afraid of being arrested [for violating the injunction] by talking to someone who may, without my knowledge, be a prostitute." The City also does not dispute this. Burnette additionally avers that she is "also afraid of being arrested for purely legal social and personal conversation with friends who may or may not be defendants in this injunction action." The City does not dispute this either. Accordingly, on remand, the trial court should strike this prohibition from the permanent injunction.

2. Alleged deprivation of specific constitutional rights.

¶ 17. Appellants argue that portions of the injunction violate their specific rights to associate with family and friends, their rights to freedom of speech and assembly, and their right to freedom of movement in public places. As with their challenge to the injunction on vagueness grounds, we agree in part, and disagree in part.

a. Right of association. There is no doubt but that members of our society have a constitutional right to associate with family and friends without undue restriction. The right of association is generally broken down into two main elements: 1) the right of intimate association, which encompasses such family-type relationships as marriage, cohabitation, and procreation; and 2) the right of expressive association, which includes political-type activity. Roberts, 468 U.S. at 617-626.

¶ 18. Appellants challenge that portion of the injunction that prohibits them from "[ejngaging in, beckoning to stop, or engaging male or female passersby in conversation." They contend that this restriction would prohibit them from talking to their friends and relatives. We agree that this broad restriction, as phrased, is susceptible to this interpretation. As such, it is broader "than necessary to accomplish its goal" of suppressing prostitution-related activities. See Madsen, 512 U.S. at 764-768. Accordingly, on remand, the trial court should modify this aspect of the permanent injunction to ensure that it does not encompass appellants' relatives and friends (that is, persons with whom appellants had social relationships before the activity described by the restriction).

¶ 19. Appellants also challenge the restriction insofar as it applies to strangers as infringing on their right to expressive association. Appellants point to nothing in the record however, that indicates in any way that prohibiting them from approaching strangers on the street prevents them from doing anything other than soliciting for purposes of prostitution; there is no evidence in the record that appellants seek to approach and converse with strangers as part of any group effort to accomplish any of the goals protected by the right of expressive association — the "wide variety of political, social, economic, educational, religious, and cultural" activities in which groups engage. See Roberts, 468 U.S. at 622. Thus, this aspect of appellants' challenge is without merit.

b. Right of free speech. Appellants challenge those parts of the injunction that prohibit them from " [engaging in, beckoning to stop, or engaging male or female passersby in conversation" and from "stopping or attempting to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture, or yelling in a loud voice" as violating their First Amendment right to free speech. These challenges are without merit. There is no evidence in the record that such actions — insofar as they are directed to strangers— have any purpose other than the solicitation for prostitution, which is specifically prohibited by Wis. Stat. §§ 947.02(3) (unlawful for a person to "in public, solicit[] another to commit a crime against sexual morality") and 944.30(5) (unlawful to either "offerO" or "request[]" another person to commit various sex acts "for anything of value"). Carving away the unlawful speech of soliciting for purposes of prostitution, the prohibition against approaching and talking to strangers is content neutral, and, indeed, is not a restriction on speech qua speech but rather on conduct. See State v. Zwicker, 41 Wis. 2d 497, 511-513, 164 N.W.2d 512, 519-520 (1969) (recognizing that conduct may be prohibited even though tinctured with elements of speech); cf. Madsen, 512 U.S. at 773-774 (government may not prohibit "all uninvited approaches" to strangers when restriction is based on content of speech rather than conduct).

¶ 20. Prohibiting persons from attempting to stop cars by waiving and yelling (other than an attempt to get the attention of a taxicab driver — an argument that appellants do not make but, as seen in footnote four, we accommodate), is akin to the law against disorderly conduct, which prohibits "boisterous, unreasonably loud or otherwise disorderly conduct" in "public" places "under circumstances in which the conduct tends to cause or provoke a disturbance," Wis. Stat. § 947.01. The disruptive nature of either stopping or trying to stop drivers (other than those driving taxicabs) "by hailing, waving of arms or any other bodily gesture, or yelling in a loud voice," and the concomitant right of government to prohibit that conduct, validates this aspect of the injunction, especially, as noted, when stripped of the unlawful speech of soliciting for purposes of prostitution, the prohibition is content neutral. See Ward v. Rock Against Racism, 491 U.S. 781, 796 (1989) (government has " 'a substantial interest in protecting its citizens from unwelcome noise'") (quoted source omitted); Zwicker, 41 Wis. 2d at 511-513, 164 N.W.2d 519-520; cf. Gresham v. Peterson, 225 F.3d 899, 904-906 (7th Cir. 2000) (upholding ordinance limiting begging in public places and banning all "aggressive panhandling" despite the recognition that "[bjeggers at times may communicate important political or social messages in their appeals for money, explaining their conditions related to veteran status, homelessness, unemployment and disability, to name a few.") ("The city has a legitimate interest in promoting the safety and convenience of its citizens on public streets.").

¶ 21. Subject to footnote four, the restrictions here are no more restrictive "than necessary to accomplish [their] goal" of suppressing prostitution-related activities. See Madsen, 512 U.S. at 764-768.

c. Right of travel. Appellants also challenge the restrictions on: attempting to speak to strangers who are either on foot or in cars, being within twenty-five feet of other persons subject to the injunction, and loitering at pay phones or bus stops as abridging their right to travel. We have already indicated that the twenty-five-foot restriction is unconstitutionally vague; accordingly, we do not discuss appellants' alternative argument in connection with that aspect of the injunction. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground"). In connection with the bus-stop, pay-phone, and uninvited-approaches-to-strangers restrictions, the injunction does not prevent the appellants from travelling anywhere; they may not accost strangers in the manner enjoined, however, and they are perfectly free to use bus stops and pay phones for the intended use of those facilities.

By the Court. — Orders and judgment and affirmed in part; reversed in part and cause remanded for further proceedings.

       The original complaint named seventy-five persons, plus "Jane Doe(s) and John Doe(s)," but not the appellants as defendants.

       It is not clear from the appellate record why Burnette and Jenkins were in the Milwaukee County Jail on March 2, 2001.

       Wisconsin Stat. § 944.30 provides:
      Prostitution. Any person who intentionally does any of the following is guilty of a Class A misdemeanor:
      (1) Has or offers to have or requests to have nonmarital sexual intercourse for anything of value.
      (2) Commits or offers to commit or requests to commit an act of sexual gratification, in public or in private, involving the sex organ of one person and the mouth or anus of another for anything of value.
      (3) Is an inmate of a place of prostitution.
      (4) Masturbates a person or offers to masturbate a person or requests to be masturbated by a person for anything of value.
      (5) Commits or offers to commit or requests to commit an act of sexual contact for anything of value.

       Appellants have not asserted that this portion of the injunction interferes with their ability to hail taxicabs that may be cruising the streets looking for fares. We may, however, as noted in the main body of this opinion, take judicial notice "whether requested or not" of matters that are "generally known within the territorial jurisdiction of the trial court." Wis. Stat. Rule 902.01(2)(a), 902.01(3), & 902.01(6). On remand, the trial court should modify this portion of the injunction to permit the appellants to hail taxicabs licensed pursuant to the authority granted by Wis. Stat. § 349.24.


text:
    Tele-Port, Inc., a Wisconsin corporation, Plaintiff-Appellant, v. Ameritech Mobile Communications, Inc., a Delaware corporation, Ameritech Mobile Communications of Wisconsin, Inc., a Wisconsin corporation, Milwaukee SMSA Limited Partnership, a Delaware Limited Partnership, and Car Phones +, Inc., a Wisconsin corporation, Defendants-Respondents.
    Court of Appeals

      No. 00-2627.

      Submitted on briefs September 4, 2001.

    Decided October 9, 2001.

    2001 WI App 261
    (Also reported in 637 N.W.2d 782.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert B. Corris, S.C. of Robert B. Corris, S.C., Milwaukee; Bruce A. Ranta of Cunningham & Lyons, S.C., Milwaukee; and Edward T. Joyce and Rowena T. Parma of Edward T. Joyce & Associates, PC., Chicago, Illinois.
    On behalf of the defendant-respondent, Car Phones +, Inc., the cause was submitted on the brief of John Theiler Bode of Bode, Carroll, McCoy, Hoefle & Mihal, S.C., Waukesha.
    On behalf of the defendant-respondent, Ameritech Mobile Communications, Inc., the cause was submitted on the brief of Jon P Christiansen and Cynthia J. Franecki of Foley & Lardner, Milwaukee.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 1-29-02.

   FINE, J.

¶ 1. Tele-Port, Inc., appeals from a judgment dismissing its claims against Ameritech Mobile Communications, Inc., and Car Phones+, Inc. We affirm.

¶ 2. Tele-Port is an Ameritech dealer for cellular telephone service. So is Car Phones+. The essence of Tele-Port's many claims against Ameritech is that Ameritech gave more market development funds to Car Phones + than it did to Tele-Port. The market development funds about which Tele-Port complains were separate from and in addition to contributions that Ameritech made to its cellular-service dealers, the level of which was computed pursuant to formulae based on a dealer's Ameritech-business volume. These business-volume based contributions took the form of a cooperative advertising fund, which was limited to advertising expenditures, and, starting in 1997, a Dealer Development Fund, which could be used for "special promotional activities" approved by Ameritech. According to Tele-Port, as phrased by its final amended complaint, Ameritech's payment of market development funds to Car Phones + permitted Car Phones + "to flood the competitive area with advertising, open new locations, and obtain a disproportionate share of the market."

¶ 3. The trial court decided this case on summary judgment. Summary judgment is used to determine whether there are any disputed facts that require a trial, and, if not, whether a party is entitled to judgment as a matter of law. Wis. Stat. Rule 802.08(2); U.S. Oil Co. v. Midwest Auto Care Servs., 150 Wis. 2d 80, 86, 440 N.W.2d 825, 827 (Ct. App. 1989). Of course, "summary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear." Lecus v. American Mut. Ins. Co. of Boston, 81 Wis. 2d 183, 189, 260 N.W.2d 241, 243 (1977). In order to survive summary judgment, however, the party with the burden of proof on an element in the case must establish that there is at least a genuine issue of fact on that element by submitting evidentiary material "set[ting] forth specific facts," Wis. Stat. Rule 802.08(3), material to that element. Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 290-292, 507 N.W.2d 136, 139 (Ct. App. 1993). Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). For ease of analysis, we will discuss in sequence each of the claims that Tele-Port pursues on this appeal.

1. Fair Dealership Act claim.

¶ 4. Tele-Port asserts that Ameritech's alleged preferential treatment of Car Phones + violated provisions of Wisconsin's Fair Dealership Law, specifically Wis. Stat. §§ 135.03 and 135.04, by changing the competitive circumstances of Tele-Port's dealership agreement with Ameritech. All claims under Wis. Stat. ch. 135 must be "commenced within one year after the cause of action accrues or be barred." Wis. Stat. § 893.93(3). The trial court granted summary judgment to Ameritech on Tele-Port's chapter-135 claims because, among other reasons, it determined that Tele-Port's lawsuit was commenced more than one year after these claims accrued. On our de novo review, we agree.

¶ 5. Tele-Port contends that Ameritech gave Car Phones+ preferential treatment starting in 1991. Tele-Port did not commence this action until September 29, 1998. Tele-Port's president, Gary Sennett, submitted an affidavit to the trial court averring that he did not learn of the arrangement between Ameritech and Car Phones+ that he argues violates the Fair Dealership Law until March of 1998. Tele-Port thus asserts that under the "discovery rule" first adopted by Hansen v. A.H. Robins, Co., 113 Wis. 2d 550, 560, 335 N.W.2d 578, 583 (1983) ("tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first"), its Fair-Dealership-Law claims did not "accrue" until that date. Ameritech, on the other hand, argues that the discovery rule does not apply to chapter-135 actions, and, in any event, Tele-Port either knew or in the exercise of reasonable diligence should have known that Amer-itech was giving the funds to Car Phones + well prior to one year before September 29, 1998. We agree with this latter contention, and, accordingly, do not discuss whether the "discovery rule" applies to claims under the Fair Dealership Law. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

¶ 6. Ameritech disputes Sennett's contention that the earliest he knew that Ameritech was giving market development funds to Car Phones + was in March of 1998. But this dispute is immaterial because the issue is what Tele-Port either knew or in the exercise of reasonable diligence should have known and Tele-Port does not dispute with evidentiary material that the manager of one of its stores knew about those funds more than one year before Tele-Port commenced this action.

¶ 7. Tele-Port is a corporation. "Notice" to a corporation can only be through its employees. Knowledge acquired by an employee of a corporation during his or her employment and concerning something pertinent to the subject matter of that employment, so that the employee therefore becomes an "agent" of the employer for the purposes of that information, is notice to the corporation for statute-of-limitations purposes, irrespective of whether the employee communicates that knowledge to anyone else in the corporation. 3 W Fletcher, Cyclopedia of the Law of Private Corporations § 793 (rev. perm. ed. 1994) (notice to agent is imputed to principal "if the matter" about which notice is given "is relevant or pertinent to the subject matter of the agency" or employment); see also Suburban Motors of Grafton, Inc. v. Forester, 134 Wis. 2d 183, 192-193, 396 N.W.2d 351, 355 (Ct. App. 1986) (" 'corporation is charged with constructive knowledge, regardless of its actual knowledge, of all material facts of which its officer or agent receives notice or acquires knowledge while acting in the course of his employment within the scope of his authority, even though the officer or agent does not in fact communicate his knowledge to the corporation'") (quoting 3 W. Fletcher, Cyclopedia of the Law of Private Corporations § 790 (rev. perm. ed. 1975)).

¶ 8. The undisputed evidence in the record indicates that Eugene Rosenberg managed Tele-Port's store in Mequon for several years, but no later than 1996. His brother, Gary Rosenberg, handled advertising for Car Phones+, and, indeed, put together many of Car Phones+'s proposals for market development funds from Ameriteeh. Gary Rosenberg testified at his deposition that when his brother was the Mequon store manager, Gary Rosenberg told his brother that he was getting significant promotion funds from Ameritech for Car Phones + in addition to the cooperative-advertising formula-based contributions that Ameritech was giving to each dealer, and suggested that Tele-Port also seek that money. Tele-Port contends, however, as phrased by Sennett's affidavit, that "Eugene Rosenberg had no authority whatsoever relating the [sic] subject matter of the communication that Gary Rosenberg described in his deposition." This contention is off the mark.

¶ 9. The issue here is not whether Eugene Rosenberg could have either personally sought promotion funds from Ameritech on Tele-Port's behalf or personally designed and implemented promotions with those funds, but whether he had the corporate interest and opportunity to both appreciate the significance of the information and pass it on to those who could pursue it further. Tele-Port does not dispute that Eugene Rosenberg's authority and corporate interest (as opposed to those whose employment responsibilities are unrelated to the substance of a company's business— maintenance personnel, for example) encompassed helping Tele-Port remain as competitive as possible vis-á-vis not only Car Phones-I- but also other cellular-service sellers. Thus, Eugene Rosenberg not only learned during his employment by Tele-Port that Car Phones + was receiving promotion funds from Amer-itech that exceeded and were different than the normal cooperative-advertising allotments, but it was also within his authority to act on that information — that is, to tell Sennett that there was a way to seek extra funds from Ameritech.

¶ 10. Significantly, Tele-Port also received market development funds from Ameritech. In 1996, when Ameritech wanted a presence on Bluemound Road, it gave $7,300 to Tele-Port to help Tele-Port open a store there. This money was unrelated to cooperative-advertising funds, and was paid before Ameritech instituted the Dealer Development Fund program. Sennett testified at his deposition that he knew that the $7,300 was in addition to the "co-op money that one earns" under the dealership contract, and conceded that "for lack of a better term I suppose I could use MDF, but I don't know that that's the case." "MDF" is the acronym that Tele-Port uses for "market development funds."

¶ 11. Tele-Port was also aware that Car Phones+ was, as asserted in Tele-Port's final amended complaint, "flood[ing] the competitive area with advertising" and was "open[ing] new locations." As a matter of law, Tele-Port's obvious concern about Car Phones-t-'s significant success in the market, combined with what Gary Rosenberg told his brother and Tele-Port's own receipt of money apart from the cooperative advertising funds, gave Tele-Port sufficient information to trigger the required inquiry so that it would have, in the exercise of reasonable diligence, discovered more than one year before it commenced this action the availability of market development funds from Ameritech. See Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 319, 340, 565 N.W.2d 94, 105 (1997) ("Plaintiffs may not ignore means of information reasonably available to them, but must in good faith apply their attention to those particulars which may be inferred to be within their reach.") (recognizing "duty to inquire") (affirming trial courts' grants of summary judgment that plaintiffs' claims were barred by the statute of limitations). Accordingly, Tele-Port's Fair Dealership claim is barred by the applicable one-year statute of limitations.

2. Duty of good faith and fair dealing.

¶ 12. Tele-Port's contract with Ameritech is governed by Illinois law. As in Wisconsin, Illinois applies clear contract language as it is written. Continental Mobile Tel. Co. v. Chicago SMSA Ltd. P'ship, 587 N.E.2d 1169, 1173 (Ill. App. Ct. 1992) ("when the contract terms are clear and unambiguous, the intent of the parties must be discerned only from the language used in the contract itself'). Although "[i]n Illinois, as in the majority of American jurisdictions, a covenant of good faith and fair dealing is implied in every contract absent express disavowal," Dayan v. McDonald's Corp., 466 N.E.2d 958, 971 (Ill. App. Ct. 1984), the concepts of "good faith" and "fair dealing" may not be used to modify the contractual obligations of the parties, Baxter Healthcare Corp. v. O.R. Concepts, Inc., 69 F.3d 785, 792 (7th Cir. 1995) (applying Illinois law).

¶ 13. Tele-Port claims that Ameritech breached its duty of good faith and fair dealing by implementing an alleged "discriminatory non-system wide market development fund payments to Car Phones+ and not to any other Ameritech dealers in the Wisconsin market." But Tele-Port points to no clause in any of its Ameritech contracts that prevents Ameritech from giving market development funds to any of its dealers. Indeed, Tele-Port does not dispute that its contracts with Ameritech not only give Ameritech the unrestricted right to sell its products and services through other dealers who are Tele-Port's competitors, but also to market those products and services by itself — through its own outlets and by its own employees. This is dispositive of Tele-Port's contention that Ameritech breached its duty of good faith and fair dealing by giving to Car Phones + more promotion-type funds than what was available via the cooperative advertising allowances. See Metro Communications Co. v. Ameritech Mobile Communications, Inc., 788 F. Supp. 1424, 1431 (E.D. Mich. 1992) (applying Illinois law).

¶ 14. Metro Communications concerned dealership contracts that, similar to those here, gave to Ameritech the unfettered right to compete with Metro Communications, either through other dealers or by itself. Id., 788 F. Supp. at 1431. Metro Communications rejected Metro Communications's argument that the doctrine of good faith and fair dealing prevented Amer-itech from treating some of its dealers differently than it treated others because the free-compete clause negated any expectation that Ameritech could not treat some of its dealers differently than others:

This clause contains no limitation on the manner in which [Ameritech] could compete with Plaintiffs. Therefore, the possibility that [Ameritech] would offer more favorable terms to Plaintiffs' competitors was, or should have been, part of the parties' reasonable expectations. As such, there is no violation of the implied covenant of good faith.

Id., 788 F. Supp. at 1432. See also Patel v. Dunkin' Donuts of Am., Inc., 496 N.E.2d 1159 (Ill. App. Ct. 1986) (contractual grant to franchisor to "in its sole discretion . .. operate or franchise" other shops negated any claim of franchisee that opening of a competing shop within one mile of franchisee breached the franchiser's duty of good faith and fair dealing). Tele-Port's arguments based on the doctrine of good faith and fair dealing under Illinois law are without merit.

3. Unfair trade practices.

¶ 15. Tele-Port also contends that Ameritech's giving market development funds to Car Phones+ violated the "secret. . . unearned discounts" prohibition of Wis. Stat. § 133.05(1). This section provides:

The secret payment or allowance of rebates, refunds, commissions or unearned discounts, whether in the form of money or otherwise, or the secret extension to certain purchasers of special services or privileges not extended to all purchasers purchasing upon like terms and conditions, such payment, allowance or extension injuring or tending to injure a competitor or destroying or tending to destroy competition, is an unfair trade practice and is prohibited.

¶ 16. Wis. Stat. § 133.05(1) prohibits two types of preferences: (1) secret "rebates, refunds, commissions or unearned discounts"; and (2) secret "special services or privileges not extended to all purchasers purchasing upon like terms and conditions." Tele-Port does not contend that Ameritech violated the "special services or privileges" component, and, therefore, we do not discuss it. See Reiman Assocs. v. R/A Adver. Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292, 294 n.1 (Ct. App. 1981) (matter not briefed or argued is waived).

¶ 17. Resolution of what Wis. Stat. § 133.05(1) prohibits requires us to apply the legislature's language. Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519, 522 (1996). The words "rebates, refunds, commissions or. . . discounts" are not defined in the statute, and, therefore, we may look to a recognized dictionary. Jauquet Lumber Co. v. Kolbe & Kolbe Millwork Co., 164 Wis. 2d 689, 698, 476 N.W.2d 305, 308 (Ct. App. 1991). Black's Law Dictionary defines the words as follows:

rebate: "A return of part of a payment, serving as a discount or reduction";
refund: "The return of money to a person who overpaid";
commission: "A fee paid to an agent or employee for a particular transaction, usu. as a percentage of the money received from the transaction <a real-estate agent’s commission;»";

and, finally, what Tele-Port complains of,

discount: "A reduction from the full amount or value of something, esp. a price."

Black's Law Dictionary 1273, 1285, 264, 477 (7th ed. 1999). As we see, the words "rebates," "refunds," and "discounts" mean essentially the same thing — a reduction or credit that is tied to the price of the good or service being purchased by the recipient of the reduction or credit. An "earned" discount is a "reasonable" reduction from a price to compensate the person receiving the discount for performing "a service" that is both: (1) something that would "ordinarily be performed by" the person giving the discount; and (2) something that would be performed at the "request" of the person giving the discount. Jauquet Lumber, 164 Wis. 2d at 701-702, 476 N.W.2d at 309. But, to be a "discount" the "payment or allowance" must be a reduction from the price that would be paid if the "discount" were not given. This is consistent with the maxim of statutory construction noscitur a sociis — "that a word 'is known from its associates' so that 'ordinarily the coupling of words denotes an intention that they should be understood in the same general sense.'" State v. Johnson, 171 Wis. 2d 175, 181, 491 N.W.2d 110, 113 (Ct. App. 1992) (quoting 2A Sutherland Stat Const § 47.16 (5th ed. 1992)).

¶ 18. There is no evidence in the record that the market development funds were used as a disguised mechanism to cloak the reduction of prices to either Car Phones + or its customers for Ameritech equipment or services. Indeed, Sennett testified during his deposition that he did not "know one way or another" if there were "lower prices for equipment charged in the marketplace by any of [Tele-Port's] competitors by reason of the payment of any market development funds to the competitor by Ameritech." Accordingly, Teleport has not submitted evidentiary material raising a genuine issue of fact as to whether the market development funds were "discounts" so that Ameritech's payment of market development funds violated Wis. Stat. § 133.05(1) as Tele-Port contends.

4. Conspiracy.

¶ 19. Finally, Tele-Port argues that Ameritech and Car Phones + engaged in a civil conspiracy to violate Wis. Stat. § 133.05(1). A civil conspiracy in Wisconsin is " 'a combination of two or more persons by some concerted action to accomplish some unlawful purpose or to accomplish by unlawful means some purpose not in itself unlawful.'" Onderdonk v. Lamb, 79 Wis. 2d 241, 246, 255 N.W.2d 507, 509 (1977) (quoted source omitted). We have already determined that Ameritech did not violate § 133.05(1) as Tele-Port contends. Additionally, Tele-Port has not alleged that Car Phones + did anything "to accomplish by unlawful means some purpose not in itself unlawful." Accordingly, Tele-Port's civil conspiracy claim is also without merit.

By the Court. — Judgment affirmed.

       Wisconsin. Stat. § 135.03 provides:
      Cancellation and alteration of dealerships. No grantor, directly or through any officer, agent or employe[e], may terminate, cancel, fail to renew or substantially change the competitive circumstances of a dealership agreement without good cause. The burden of proving good cause is on the grantor.
      Wisconsin. Stat. § 135.04 provides:
      Notice of termination or change in dealership. Except as provided in this section, a grantor shall provide a dealer at least 90 days' prior written notice of termination, cancellation, nonrenewal or substantial change in competitive circumstances. The notice shall state all the reasons for termination, cancellation, nonre-newal or substantial change in competitive circumstances and shall provide that the dealer has 60 days in which to rectify any claimed deficiency. If the deficiency is .rectified within 60 days the notice shall be void. The notice provisions of this section shall not apply if the reason for termination, cancellation or nonrenewal is insolvency, the occurrence of an assignment for the benefit of creditors or bankruptcy. If the reason for termination, cancellation, nonrenewal or substantial change in competitive circumstances is nonpayment of sums due under the dealership, the dealer shall be entitled to written notice of such default, and shall have 10 days in which to remedy such default from the date of delivery or posting of such notice.

       At another point in Sennett's deposition, there is this confusing colloquy between Sennett and Ameritech's lawyer:
      Q. And what you're saying is you didn't get what you believed to be your fair share of the available funds?
      A. I'm not aware I received any.
      Q. Okay. So you would agree with me then that you didn't get — What you're complaining about is not getting your fair share of the available funds?
      A. Yes.
      Although Tele-Port argues on appeal that the $7,300 was not the same as the market development funds it complains were given to Car Phones + without Tele-Port's knowledge, it points to no evidentiary material in the record supporting that argument. The undisputed evidence is that both the $7,300 given to Tele-Port and the market development funds given to Car Phones + were different from and more than what both Tele-Port and Car Phones+ were contractually entitled to.
      In its reply brief, Tele-Port sets out the following table, drawn from a document prepared by Gary Rosenberg in 1994, to show that the $7,300 were not market development funds but, rather, "grand opening" funds:

        Car Phones-1993 MDF Funds
      Market Development Funds (MDF) $25,000.00
      Local Event Funds (LE) $ 2,000.00
      Yellow Pages (YP) . $ 6,000.00
      Grand Opening Funds (GO) $18,000.00
      X-mas Funds $ 4,000.00
      $55,000.00
      In its main brief on this appeal, Tele-Port characterizes the entire $55,000 as market development funds, a characterization that is consistent with the heading of Rosenberg's chart. Insofar as the chart differs from Tele-Port's contention in its brief-in-chief, we do not consider it because it is raised for the first time in its reply brief. Sisters of St. Mary v. AAER Sprayed Insulation, 151 Wis. 2d 708, 723-724 n.4, 445 N.W.2d 723, 729 n.4 (Ct. App. 1989) (appellate court will not review issue raised for first time in reply brief).

       The duty to inquire is a basic tenet of our law, and applies when a plaintiff seeks relief for an alleged injury that in the exercise of reasonable diligence he or she should have discovered earlier. See Melms v. Pabst Brewing Co., 93 Wis. 153, 174, 66 N.W. 518, 524 (1896) ("Where the question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known by him were such to put a man of ordinary prudence upon inquiry."). Here, of course, as already noted, the issue is the knowledge of Tele-Port, which is the plaintiff in this action, and not Sennett.

       We thus do not decide whether the knowledge of a person who did advertising for Tele-Port between 1993 and 1995 but who was never employed by Tele-Port is notice to Tele-Port. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground"). We also do not consider whether Ameritech is estopped from asserting a statute-of-limitations defense because Tele-Port raises that issue for the first time in its reply brief. See Sisters of St. Mary, 151 Wis. 2d at 723-724 n.4, 445 N.W.2d at 729 n.4.

       The parties differ on whether Tele-Port, as a conduit for its customers to get Ameritech cellular services, is a "purchaser." (There is also a question, albeit not disputed on this appeal by the parties, whether the word "purchaser" modifies the proscription on the "secret payment or allowance of rebates, refunds, commissions or unearned discounts" as well as the ban on secret "special services or privileges"). Resolution of these matters, however, is immaterial in this case, and, accordingly, we do not address them. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).


author: SCHUDSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Eddie McAttee, Defendant-Appellant.

    Court of Appeals

      No. 00-2803-CR.

      Submitted on briefs September 4, 2001.

      Decided October 9, 2001.

    2001 WI App 262
    (Also reported in 637 N.W.2d 774.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Russell D. Bohach, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 12-17-01.

   SCHUDSON, J.

¶ 1. Eddie McAttee appeals from the judgment of conviction for first-degree intentional homicide and armed robbery, following a jury trial. He argues that the trial court's refusal to suppress his statements to police was erroneous because: (1) the police did not have probable cause to arrest him; (2) the police presented false information to the magistrate who found probable cause and, therefore, he did not receive a valid probable cause hearing; and (3) his statements were not sufficiently attenuated from the illegal arrest and probable cause determination to allow for their admission. We reject his first two arguments and need not address his third; accordingly, we affirm.

I. BACKGROUND

¶ 2. On May 8, 1998, Leroy Taylor was shot to death while sitting in his car. During the ensuing investigation, the police interviewed McAttee, whose mother had dated Taylor and borrowed money from him. McAttee voluntarily accompanied police to the police administration building for the interview and, following that interview, the police allowed McAttee to leave. On June 8, however, City of Milwaukee Police Detective Dennis Kuchenreuther and Officer Kenneth Smith received information from a confidential informant, which led to McAttee's arrest on June 10.

¶ 3. According to the testimony of Detective Kuchenreuther and Officer Smith at the January 5, 1999 hearing on McAttee's motion to suppress his statements to police, the informant provided information including: (1) that she was a "best friend" of Lakesha Holmon (McAttee's girlfriend and the mother of his children); (2) that Lakesha had said that McAttee had "confessed" to killing a person named "Leroy," in the presence of a female; (3) that Lakesha's sister, Latoya, had said that Lakesha had told her that she had been present at the killing and had seen the victim "take his last breath"; and (4) that Lakesha's mother, Colleen Holman, had said that McAttee had confessed to her that he had killed Leroy Taylor. Detective Kuchen-reuther also testified that he had spoken directly with Colleen, and that she had told him that Lakesha had told her that McAttee "had killed someone" named "Leroy."

¶ 4. Based primarily on the information obtained from the informant, police arrested McAttee at 9:40 a.m. on June 10, and interviewed him six times between then and the morning of June 13. McAttee made inculpatory statements, but did not confess to the killing.

¶ 5. At the January 5, 1999 hearing on McAttee's motion, Officer Smith testified that, on June 10, he wrote a police report in support of probable cause for McAttee's continued detention. The report was presented to a court commissioner at 9:03 a.m. on June 12, forty-seven hours and twenty-three minutes after McAttee's arrest. At the February 1, 1999 hearing, defense counsel read into the record this portion of Officer Smith's report: "Eddie McAttee was implicated by a co [] conspirator as being the person who shot the victim causing his death on 5-8-98." Officer Smith testified that he used the term "co[] conspirator" to refer to Lakesha, based on the informant's statement that Latoya had said that Lakesha had admitted that she had been present at the homicide.

¶ 6. McAttee was charged with first-degree intentional homicide and armed robbery. The trial court denied McAttee's motion to suppress his statements to police. At his trial, the statements were introduced and they, together with other evidence, established that McAttee, who was sitting in the car arguing with Taylor, shot him in the head three times, causing his death, and took money from him. A jury found McAttee guilty of both charges.

II. DISCUSSION

A. Arrest

¶ 7. McAttee first argues that the police did not have probable cause to arrest him because the informant "did not relate details which she personally observed, or which were directly attributed to [him]," but rather, "provided information to the police which was twice removed from [him]." He contends that the information provided by the informant "was inherently unreliable, and therefore could not be used to establish probable cause." McAttee points out that Detective Kuchenreuther testified that he had not had previous contact with the informant. McAttee also claims that Detective Kuchenreuther testified that he had no personal knowledge of whether the informant was. reliable. Additionally, McAttee notes, nothing in the record "shows that any independent verification of the informant's information was attempted by the Milwaukee Police Department." McAttee's arguments miss the mark.

¶ 8. In reviewing the trial court's denial of McAttee's motion to suppress evidence, we determine de novo whether the facts, here undisputed, satisfy the constitutional standards regarding probable cause to arrest. See State v. Mitchell, 167 Wis. 2d 672, 684, 482 N.W.2d 364 (1992); State v. Richardson, 156 Wis. 2d 128, 137-38, 456 N.W.2d 830 (1990); State v. Riddle, 192 Wis. 2d 470, 475, 531 N.W.2d 408 (Ct. App. 1995). "Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime." Browne v. State, 24 Wis. 2d 491, 503, 129 N.W.2d 175 (1964).

¶ 9. Probable cause to arrest may be based on hearsay information that is "shown to be reliable and emanating from a credible source." Laster v. State, 60 Wis. 2d 525, 532, 211 N.W.2d 13 (1973). Thus, information from a confidential informant may supply probable cause to arrest if police know the informant and "from their own direct knowledge know the informant to be reliable." Browne, 24 Wis. 2d at 506. Whether information from a confidential informant is sufficient to establish probable cause to arrest depends on the totality of the circumstances, including the informant's "veracity, reliability, and basis of knowledge." See Richardson, 156 Wis. 2d at 140 (citation omitted).

¶ 10. McAttee's argument flows from at least two faulty premises: (1) that Detective Kuchenreuther, rather than Officer Smith, who had had previous dealings with the informant, was required to have had firsthand personal knowledge of the informant's reliability; and (2) that the police "had an independent obligation to ascertain the reliability of Lake[sh]a Hol-mon, whose statements the informant was transmitting."

¶ 11. First, Detective Kuchenreuther was entitled to rely on Officer Smith's knowledge of the confidential informant. See State v. Black, 2000 WI App 175, ¶ 17 n.4, 238 Wis. 2d 203, 617 N.W.2d 210 (arresting officer may rely on collective knowledge of police force conveyed to the officer prior to arrest), review denied, 2000 WI 121, 239 Wis. 2d 310, 619 N.W.2d 93, cert. denied, 121 S. Ct. 1166 (2001). And Officer Smith had ample reason to rely on the information provided by this informant. At the January 5,1999 hearing on McAttee's motion, Officer Smith testified:

Q: ... [A]nd on [June 8, 1998] did you have occasion to talk to Detective Kuchenreuther about some information you had obtained from a confidential informant?...
A: Yes.
Q: Now, this C-I was known to you at the time but not to the detective; isn't that correct?
A: That's correct.
Q: And this C-I had given you some information with regard to the homicide of Leroy Taylor which had occurred on May 8th of 1998, correct?
A: Correct.
Q: Now, this C-I, had you obtained information from this person before?
A: Yes.
Q: And on about how many different occasions had this particular confidential informant supplied you with information in your professional dealings with her?
A: I believe it was three or four separate times.
Q: And on all of these occasions, did you find the information supplied by this person to be truthful and reliable?
A: Yes.
Q: Was there any time when this informant supplied you with information which turned out to be untruthful?
A: No. It was always truthful.

See State v. Reed, 156 Wis. 2d 546, 555, 457 N.W.2d 494 (Ct. App. 1990) (confidential informant's reliability may be established by evidence that informant "ha[s] provided reliable information in the past").

¶ 12. Second, for purposes of probable cause to arrest, the police were entitled to rely on information from a known and reliable informant without independently determining the reliability of the informant's source or the source's information. The confidential informant, not Lakesha, was the person who provided police with Latoya's account of Lakesha's statement. As we have just recounted, Officer Smith had ample basis to rely on the informant. Evaluating the information obtained from the informant, the police then had discretionary authority to determine whether additional information from the informant's sources, or corroboration or confirmation of the underlying information, was necessary before making an arrest.

¶ 13. Here, as a matter of fact, Detective Kuchen-reuther did obtain some corroboration when Colleen informed him that Lakesha had told her that McAttee had admitted killing "Leroy." Moreover, from their investigation and initial interview of McAttee, police already had information corroborating the relationships among McAttee, Lakesha, Latoya, Colleen, and Leroy. See State v. Lopez, 207 Wis. 2d 413, 426, 559 N.W.2d 264 (Ct. App. 1996) ("When an informant is shown to be right about some things he or she has alleged, it is probable that the informant is also right about others.").

¶ 14. McAttee cites no authority requiring police to gain additional information, corroborating that received from a reliable informant, before making an arrest. Here, clearly, the information disclosed by the informant was vital; it established probable cause to arrest McAttee for the homicide. At the January 5,1999 hearing, Officer Smith testified:

Q: Did you yourself talk to this [confidential informant] about the information ... that she had?
A: Yes.
Q: And do you recall what information the C-I told you that she had regarding the homicide of Leroy Taylor?
A: Yes.
Q: And what was that?
A: The C-I wanted me to investigate, said that she had heard that someone had gotten killed in the area of 20th and Center in a car, and I believe the subject's name was Leroy, the victim, and that someone by the name of Eddie McAttee is the one that committed this homicide, and that he had already been arrested for it but released.
Q: Now, your C-I indicated to you that she was friends with Lakesha Holmon as well, correct?
A: Correct.
Q: And Lakesha Holmon, you understood, was friends with your C-I and also was Mr. McAttee's girlfriend, correct?
A: That's correct.
Q: Did the confidential informant indicate to you that Lakesha Holmon had told her, meaning that Lakesha Holmon had told your C-I, that Mr. McAttee had confessed to his girlfriend that he had killed someone, that he had killed this Leroy?
A: That's correct.

¶ 15. McAttee points to nothing in the record that should have undermined the police estimate of the "veracity, reliability, and basis of knowledge" of the information provided by the informant. See Richardson, 156 Wis. 2d at 140 (citation omitted). He points to nothing in the record that suggests that the police did not actually believe the information, or that they acted in bad faith in relying on it. The information, based on communication among those the informant characterized as friends, including McAttee's admission to his girlfriend, tightly tied McAttee to the homicide. Unquestionably, therefore, the trial court correctly concluded that the police had probable cause to arrest McAttee.

B.. Probable Cause Hearing

¶ 16. McAttee next argues that the probable cause determination authorizing his continued detention was improper because it was based on what he alleges was a factual misrepresentation in Officer Smith's report, which was presented to the court commissioner — the statement that McAttee had been "implicated [in the Taylor homicide] by a co[] conspirator." McAttee maintains, therefore, that the evidence obtained as a result of his improper detention must be suppressed. See State v. Golden, 185 Wis. 2d 763, 769, 519 N.W.2d 659 (Ct. App. 1994). We conclude, however, that the police made no misrepresentation that in any way undermined the integrity of the court commissioner's probable cause determination or rendered McAttee's detention improper.

¶ 17. McAttee was arrested without a warrant. In the absence of "a bona fide emergency or other extraordinary circumstance," the Fourth Amendment to the United States Constitution "requires that a judicial determination of probable cause be made within 48 hours of a warrantless arrest." State v. Koch, 175 Wis. 2d 684, 695-96, 499 N.W.2d 152 (1993); see also County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). The probable cause determination "can be based entirely on hearsay and written testimony" as long as it is offered "under oath." Koch, 175 Wis. 2d at 698 & n.8.

¶ 18. Here, the State claims that McAttee "concedes that Milwaukee police made their initial presentment of probable cause under oath to a magistrate within forty-eight hours of [his] arrest." McAttee has, indeed, conceded that the presentment occurred within forty-eight hours of his arrest, and he has not refuted the State's claim that the presentment was made under oath. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp. 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted argument deemed admitted). McAttee contends, however, that Officer Smith's report incorrectly stated that he had been implicated by a "coQ conspirator" and, therefore, the commissioner's probable cause determination was improper. We disagree.

¶ 19. Rejecting McAttee's argument, the trial court concluded that Officer Smith's report was not "calculated to mislead" and that his use of the term "co[]conspirator" could legitimately refer to Lakesha. Although McAttee fairly argues that the information the police had about Lakesha may have fallen short of establishing her status as one involved in a conspiracy under Wis. Stat. § 939.31, he offers no argument to counter the trial court's conclusion that Officer Smith's use of the term was not "calculated to mislead."

¶ 20. Moreover, while the reference to "co[] conspirator" may have been legally inexact, it also may have accurately conveyed the police's understanding, at least in the vernacular. After all, the confidential informant had informed the police that Latoya had said that Lakesha had told her that she had seen the victim "take his last breath." That could well have led the police to surmise that Lakesha, who was McAttee's girlfriend and the mother of his children, assisted his commission of the robbery/homicide and, therefore, was an "accomplice" or "coconspirator." See State v. Hecht, 116 Wis. 2d 605, 625-26, 342 N.W.2d 721 (1984) ("[T]hough there may be distinctions between aiding and abetting and conspiracy,... these distinctions are often blurred."). Accordingly, we conclude that the trial court correctly denied McAttee's motion to suppress.

By the Court. — Judgment affirmed.

       Officer Smith's report is signed by Detective Michael Valuch who, at the January 5, 1999 motion hearing, testified that, as far as he knew, Officer Smith wrote the report but apparently left the premises without signing it and, because the report needed a signature, Valuch complied with a request to sign it.
      This court notes that the appendix attached to McAttee's appellate brief consists entirely of police reports, including the above-referenced one by Officer Smith. To the best of our knowledge, not even one of these reports is contained in the appellate record. McAttee's appellate brief refers extensively to these reports. Consequently, we remind McAttee's appellate counsel that an appellant's brief to this court must contain "a statement of facts relevant to the issues presented for review, with appropriate references to the record," Wis. Stat. Rule 809.19(1)(d) (1999-2000), as well as an "argument on each issue," citing "parts of the record relied on," Wis. Stat. Rule 809.19(1)(e) (1999-2000). It is the appellant's responsibility to ensure completion of the appellate record and "when an appellate record is incomplete in connection with an issue raised by the appellant, we must assume that the missing material supports the trial court's ruling." Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993).

       This claim is inaccurate. When asked whether he had had any personal knowledge regarding the informant's reliability, Detective Kuchenreuther testified: "Not from her.... I was told by [Officer] Smith that he had gotten information from her in the past and it was always accurate."

       Wisconsin Stat. § 939.31 (1999-2000), regarding conspiracy, provides, in relevant part:

        [W]hoever, with intent that a crime he committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, he fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony.

        See also Wis JI — Criminal 410, defining conspiracy as "a mutual understanding to accomplish some common criminal objective or to work together for a common criminal purpose." Additionally, we note that Wis. Stat. § 939.05(2)(c) (1999-2000) provides, in part, that "[a] person is concerned in the commission of the crime if the person: [i]s a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it."

       Resolving this second issue on this basis obviates the need to additionally address McAttee's contention that, assuming the police had misled the court commissioner, suppression of his statements would have been required. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed).