author: DEININGER, J.

text:
    Trinity Lutheran Church and Guide One Mutual Insurance Company, Plaintiffs-Respondents-Cross-Appellants, v. Dorschner Excavating, Inc., Defendant-Third-Party Plaintiff-Respondent-Cross-Respondent, v. Edward Radtke & Sons, Inc., Baumgart Excavating, Inc., ABC Insurance Company, DEF Insurance Company and GHI Insurance Company, Third-PartyDefendants, Oudenhoven Construction, Inc., Third-Party Defendant-Appellant.
    Court of Appeals

      No. 2004AP785.

      Submitted on briefs December 16, 2004.

      Decided January 12, 2006.

    2006 WI App 22
    (Also reported in 710 N.W.2d 680.)

      On behalf of the third-party defendant-appellant, the cause was submitted on the briefs of John H. Schroth of Kasdorf Lewis & Swietlik, S.C., Green Bay.
    On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of Frank A. Dvorak of Foley & Mansfield, P.L.L.E, Minneapolis, MN.
    On behalf of the defendant-third-party plaintiff-respondent-cross-respondent, the cause was submitted on the briefs of John E Runde of Terwilliger, Wakeen, Eiehler & Conway, S.C., Wausau.
    Before Dykman, Vergeront and Deininger, JJ.
   DEININGER, J.

¶ 1. Oudenhoven Construction, Inc. (OCI), a company hired by Trinity Lutheran Church to coordinate the construction of an addition to Trinity's church building, appeals a judgment awarding damages to Trinity for a mishap that occurred during the construction project. OCI argues that the economic loss doctrine bars the negligence claims asserted against it by Trinity and by Dorschner Excavating, Inc., a company separately hired by Trinity to perform excavation work for the project. OCI also argues that expert testimony was necessary to establish whether OCI's conduct was negligent and caused damage to Trinity. Finally, OCI contends the evidence presented at trial was insufficient to permit the jury to find it negligent.

¶ 2. Because no contractual relationship existed between Dorschner and OCI, we conclude Dorschner's negligence claim against OCI for contribution is not barred by the economic loss doctrine. Trinity and OCI entered into a contract regarding the construction project, but their contract is not in the record. Accordingly, we must treat the missing contract as supporting the trial court's conclusion that its predominant purpose was OCI's provision of construction coordination services. Accordingly, we conclude the economic loss doctrine also does not bar Trinity's recovery from OCI.

¶ 3. We also conclude that expert testimony was not required to establish that OCI's conduct was negligent and contributed to Trinity's loss. Finally, we conclude that the record contains sufficient evidence to support the jury's finding that OCI was negligent in discharging its construction coordination duties.

¶ 4. Trinity cross-appeals the trial court's denial of its postverdict motion to change verdict answers or for judgment notwithstanding the verdict, in which it sought to recover against Dorschner on a contractual theory as well as in tort. We accept Dorschner's unre-futed assertion that our rejection of OCI's challenges to the appealed judgment renders Trinity's cross-appeal moot. Accordingly, we affirm the judgment before us in all respects.

BACKGROUND

¶ 5. Trinity Lutheran Church hired several contractors to build a new addition to its church. After the project was completed, the church board and pastor came to the church for a meeting, where they were met by water pouring out of the doors of the church. The cause of the flooding was determined to be a crack in the lateral supplying water to the church. Trinity and its property insurer, Guide One Mutual Insurance Company, commenced this action to recover their respective losses stemming from the water damage to the church.

¶ 6. The relationships between the parties involved in this construction project are as follows. Trinity hired OCI to coordinate construction of the addition to its church. The contract between the parties specified that this would be a "design-build" project, meaning that OCI would coordinate the work of the various contractors on the project but would not be responsible for supervising them. OCI entered into a series of subcontracts, including one with Edward Radtke & Sons, Inc., for plumbing work. Radtke, in turn, hired Baumgart Excavating, Inc., to install a water main and sanitary sewer piping. In a separate contract not involving OCI, Trinity contracted with Dorschner Excavating, Inc., to excavate for the project's footings.

¶ 7. Baumgart excavated and installed a lateral water pipe from the city water main to the church. The next day, Baumgart performed a water pressure test on the water lateral and obtained a satisfactory result. The test showed no loss of pressure, confirming the absence of loose connections or cracks in the water pipe. OCI instructed Baumgart as to where the water lateral should enter the church building but did not supervise Baumgart in the installation or testing of the water pipe.

¶ 8. After Baumgart finished its work, Dorschner excavated for the project footings. Dorschner knew that it was excavating above the water pipe because the trench where the ground had previously been disturbed by Baumgart to lay the water lateral was visible on the surface. Dorschner used a backhoe to excavate the footings above the water lateral, and it then employed a prod rod and hand shovels as it got closer to the water lateral pipe.

¶ 9. Only Dorschner used a backhoe in the area of the water lateral after Baumgart had conducted the pressure test on the newly installed lateral. The pipe was not tested again after Dorschner finished its work. Water from the city water main to the church was not turned on while Dorschner did its excavation work, and it remained off until shortly before the church board meeting when the flooding was discovered.

¶ 10. After the flooding, the water lateral was re-excavated. A large crack was discovered in the lateral in the vicinity of where Dorschner excavated for the footings. Trinity's expert opined that the water pipe cracked when the teeth of a backhoe struck it. It was established at trial that only Dorschner and Baumgart had used backhoes in the area where the water lateral pipe was located.

¶ 11. Trinity and its insurer sued Dorschner, alleging claims for breach of contract and negligence. Dorschner, in turn, filed a third-party complaint joining Radtke, Baumgart and OCI, asserting that their negligence had caused Trinity's loss. Trinity asserted no direct claims against Baumgart or OCI until after the jury verdict, when the trial court permitted Trinity to amend its complaint.

¶ 12. The claims were tried to a jury. At the close of Dorschner's case, OCI, Radtke and Baumgart moved for a directed verdict due to insufficient evidence. The parties stipulated to the dismissal of the claim against Radtke because it had been directly responsible for only interior plumbing work. The trial court denied OCI's and Baumgart's motions. The parties stipulated that Trinity and its insurer suffered damages in the amount of $195,596. The jury determined that Dorschner, Baumgart and OCI were all causally negligent, and it allocated causal negligence as follows: Dorschner, 20%; OCI, 60%; and Baumgart 20%. The jury also determined that Dorschner did not breach its contract with Trinity.

¶ 13. OCI filed postverdict motions in which it sought: (1) to change the jury's answers finding it negligent and its negligence causal from "yes" to "no"; (2) to change the jury's answer apportioning "60%" of the causal negligence against OCI to "0%"; and (3) a new trial on the grounds that the "verdict is perverse and against the interest of justice." The trial court denied all of OCI's motions.

¶ 14. Trinity moved postverdict for leave to amend its pleadings to include negligence claims against OCI and Baumgart, which the trial court granted. Trinity also moved for judgment notwithstanding the verdict, or alternatively to change verdict answers, such that its recovery against Dorschner would rest not only on Dorschner's causal negligence but also on Dorschner's alleged breach of contract. The court denied this motion.

¶ 15. The court entered judgment in favor of Trinity as follows: against Dorschner for $39,119.20 (20% of the stipulated damages), plus interest, costs and disbursements; against Baumgart for $39,119.20, plus interest; and against OCI "severally" for $117,357.58 (60% of the stipulated damages) and "jointly" for $195,595.98 (the stipulated damages), plus interest. OCI appeals the judgment and Trinity cross-appeals the denial of its postverdict motion seeking a recovery in contract as well as in tort.

ANALYSIS

Economic Loss Doctrine: Dorschner's Claim against OCI

¶ 16. To resolve OCI's initial claim of error, we must determine whether the economic loss doctrine insulates it from the negligence claims of another contractor (Dorschner) and the customer (Trinity) who hired both of them. Whether the economic loss doctrine applies to a particular set of facts is a question of law we decide de novo, owing no deference to the trial court's conclusions. Insurance Co. of N. Am. v. Cease Elec. Inc., 2004 WI App 15, ¶ 19, 269 Wis. 2d 286, 674 N.W.2d 886, aff'd, 2004 WI 139, 276 Wis. 2d 361, 688 N.W.2d 462.

¶ 17. OCI contends that the costs of remedying the church's water damage is purely an economic loss resulting from a defect in the product it supplied to Trinity, an addition to the church. According to OCI, it cannot therefore be held liable in tort to Dorschner and Trinity for any negligent conduct in the performance of its contractual obligations to Trinity. OCI maintains that its contract with Trinity was either purely for the provision of a product or, alternatively, primarily for that purpose, with any construction coordination services performed by it being merely incidental to providing Trinity with a new addition to the church. OCI principally relies on the recent decision in Linden v. Cascade Stone Co., 2005 WI 113, 283 Wis. 2d 606, 699 N.W.2d 189, where the supreme court concluded that the general contract between an owner and general contractor, not the contract between the general and a subcontractor, governed the determination whether the subcontractor was engaged in providing a product or services. Id., ¶¶ 16-17 ("Allowing the [owner] to maintain a tort claim against the subcontractors for services rendered to the general contractor would undermine the distinction between contract law and tort law that the economic loss doctrine seeks to preserve.").

¶ 18. OCI argues that, even if Trinity's contract with Dorschner was a limited one for the provisions of excavating services incident to the construction project, under Linden, we must evaluate the applicability of the economic loss doctrine on the basis of the broader contract between Trinity and OCI, the primary object of which, in OCI's view was the provision of a church addition to Trinity. We discuss the "primary purpose" issue below, but for present purposes (the applicability of the economic loss doctrine to Dorschner's contribution claim against OCI), the purpose or nature of Trinity's contract with OCI is irrelevant. There is no dispute that OCI and Dorschner had no contractual relationship between them. For purposes of the present analysis, OCI and Dorschner were "strangers" to each other who happened to be working side-by-side on a common project, not parties who had had an opportunity to "allocate economic risk by contract" between them. See id., ¶ 16.

¶ 19. OCI argues, however, that we should conclude that Dorschner's contribution claim against it is barred by the economic loss doctrine regardless of whether these two parties were in privity of contract with each other. See Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 413, 573 N.W.2d 842 (1998) ("[T]he economic loss doctrine precludes a commercial purchaser from recovering in tort from a manufacturer for solely economic losses, regardless of whether privity of contract exists between the parties."). Daanen, however, involved a suit by a consumer against a manufacturer, two parties who were in "vertical privity" with each other through an intermediary distributor. The contractual relationships in Daanen, much like the owner-contractor-subcontractor chain in Linden, provided a contractual relationship "between" the plaintiff and the defendant in that case. Dorschner and OCI, however, are not links in a vertical chain of contractual relationships; rather, their position with respect to each other is better analogized to that of successive spokes in a wheel, with Trinity at the hub. The contractual obligations of each ran exclusively to Trinity, not to one another.

¶ 20. It may well be that, where parties are linked to each other by contract, the economic loss doctrine may be invoked to avoid drowning contract law in "a sea of tort." Linden, 283 Wis. 2d 606, ¶ 7. However, when there is no contractual relationship of any kind between two parties, it is equally important to prevent an allegedly injured party from "fall[ing] between the stools of tort and contract." See Miller v. U.S. Steel Corp., 902 F.2d 573, 575 (7th Cir. 1990). Thus, we conclude that the economic loss doctrine does not bar Dorschner from obtaining a judgment for contribution from OCI on account of the latter's negligence that contributed to the loss at issue.

Economic Loss Doctrine: Trinity's Claim against OCI

¶ 21. Before analyzing whether Trinity's negligence claim against OCI is barred by the economic loss doctrine, we highlight a few key procedural facts. Trinity commenced this litigation against only Dorschner, alleging that Dorschner negligently caused Trinity's loss from the water damage to its church building. Dorschner then impleaded Radtke, Baumgart and OCI, alleging that they were negligent and that their "negligence was a substantial factor in the damages allegedly sustained by Trinity." Radtke was later dismissed on stipulation of the parties, but the jury found Baumgart, OCI and Dorschner all to have been causally negligent, apportioning causal negligence in the manner we have described. The trial court subsequently allowed Trinity to allege direct claims against OCI and Baumgart, and the court entered judgment in favor of Trinity against each defendant severally for its proportionate share of damages and against OCI jointly for the entire loss. See Wis. Stat. 895.045(1) (2003-04).

¶ 22. The supreme court has confirmed that the economic loss doctrine applies to only contracts for products, not to contracts for services. See, e.g., Grams v. Milk Prods. Inc., 2005 WI 112, 15, 283 Wis. 2d 511, 699 N.W.2d 167 (explaining that "[c]entral to our decision" not to apply the economic loss doctrine to contracts for services "was the fact that no body of law similar to the UCC applies to contracts for services"). In order to determine whether a given contract between two parties is one for services or products, a court is to apply the "predominant purpose" test by considering objective and subjective factors such as "the amount charged for services and the amount charged for materials, whether the purpose or 'thrust' of the contract was for goods or for services and the language used in the contract to describe the project." Linden, 283 Wis. 2d 606, ¶ 20. The predominant purpose test is a "totality of the circumstances" test. Id., 22, 32.

¶ 23. There is no dispute that Trinity and OCI were in a contractual relationship with each other, although the nature of their contract is in dispute. According to OCI, Trinity was deprived of the benefit of its bargain because it did not receive the "product" it agreed to purchase and OCI agreed to furnish: a church addition with an intact and properly functioning water lateral. In OCI's view, when the product (the church addition) turned out to be defective (cracked water lateral), and the defect produced damage to the product and the system into which it was integrated (the church building), Trinity suffered purely an economic loss that may not be recovered in an action based in tort. See id., ¶ 27 (noting that when a defective component of an "integrated system" damages "the system as a whole or other system components," the loss remains an economic one to which the economic loss doctrine applies); General Cas. Co. v. Ford Motor Co., 225 Wis. 2d 353, 358, 592 N.W.2d 198 (1999) (defining economic loss as "the failure of the purchaser to receive the benefit of its bargain").

¶ 24. Trinity counters that the parties' contract was one primarily for servicesthe overall coordination of construction services on the project. Trinity points out that it separately and directly purchased the bulk of the materials utilized in building the addition, and that, although OCI provided some construction services itself, both OCI and Trinity separately contracted for other design and construction services. With respect to the services separately procured by Trinity, OCI was paid a fee of 10 of the amount Trinity paid to its separately procured contractors. An OCI employee testified that "Trinity went out on its own and bought $222,888 worth of services," and OCI was paid $22,289 as its fee for coordinating the work. The excavator, Dorschner, was one of these separately procured contractors. Thus, in Trinity's view, "the negligence alleged and found against OCI did not involve goods, it involved services." We agree that, on the present record, we cannot conclude otherwise.

¶ 25. Trinity points out that the contract between it and OCI was not introduced at trial and the testimony regarding the purpose of their contract was limited. The circuit court concluded that the contract between Trinity and OCI was predominantly one for services, those being the overall coordination of the construction project. Because the economic loss doctrine is in the nature of an affirmative defense against a claim based in tort, we conclude that it was OCI's burden to introduce its contract with Trinity and to demonstrate that its predominant purpose was to supply Trinity with a product, not with services. OCI has not met this burden on the present record, and thus, we cannot conclude that the Trinity-OCI contract was predominantly one for other than construction coordination services, as the trial court concluded. Moreover, with respect to OCI's conduct that is specifically alleged to have occasioned Trinity's loss (i.e., negligence in coordinating the excavation services supplied by Dor-schner), OCI was plainly providing a service, not a product, to Trinity. Accordingly, we conclude that the economic loss doctrine does not bar Trinity's recovery of damages for OCI's negligence that contributed to Trinity's loss.

Expert Testimony Regarding OCI's Negligence

¶ 26. OCI next claims that expert testimony was necessary in order to establish that it was negligent and that its negligence caused damage to the church. Whether expert testimony is necessary to support a given claim is a question of law, which we decide de novo. See Grace v. Grace, 195 Wis. 2d 153, 159, 536 N.W.2d 109 (Ct. App. 1995). Expert testimony is not generally required to prove a party's negligence, see City of Cedarburg v. Allis-Chalmers Mfg. Co., 33 Wis. 2d 560, 566, 148 N.W.2d 13 (1967), and requiring expert testimony before a claim can get to the jury is an extraordinary step that should be ordered "only when unusually complex or esoteric issues are before the jury," id. at 567. Where the presence or absence of negligence is "reasonably comprehensible to the jury," even though inferences are involved, expert testimony is not necessary. Id. We conclude the negligence claim against OCI is one that was "reasonably comprehensible to the jury."

¶ 27. OCI contends that the "integrity of the water lateral pipe and proper construction practices for building a church are not subjects within the realm of the ordinary experiences of mankind." While that may well be true, jurors heard expert testimony that the water lateral was fractured when it was struck by a backhoe. They did not need an expert to tell them that, in the exercise of reasonable care by those working on a construction site and those responsible for coordinating the work, a water lateral should not be struck by a backhoe. Because the pipe passed a pressurization test after it was installed by Baumgart, and because only Dorschner operated a backhoe in the area thereafter, jurors could reasonably infer that Dorschner's backhoe struck the pipe. Jurors could also reasonably conclude, without the aid of an expert, that, as the party responsible for the overall coordination of the work on the construction site, OCI should have properly marked the location of the water pipe before Dorschner was permitted to excavate in the area, or that OCI should have directed that a second pressure test on the pipe be performed following the excavation work, or both.

¶ 28. We conclude that the present facts are similar to those the supreme court reviewed in Cramer v. Theda Clark Mem'l Hosp., 45 Wis. 2d 147, 172 N.W.2d 427 (1969). There, the alleged negligence was a nurse's leaving of a patient "unattended and under inadequate restraint." Id. at 153-54. The court concluded that, even though professional standards for some aspects of nursing and hospital care would require expert testimony to explicate, the specific allegations in that case did not because they were "matters of routine care." Id. So, too, here. Although some aspects of building construction might well require expert testimony before a jury could properly comprehend and assess claims of negligence and causation, the claims against OCI in this case are not of that type. As in Cramer, id. at 154, "[o]ne does not need to be an expert to be able to determine whether" the location of a water pipe should have been marked or its integrity tested following excavation work above it.

Sufficiency of the Evidence of OCl's Negligence

¶ 29. OCI asserts that the evidence presented at trial was insufficient to support the jury's finding that OCI was negligent. In its appellate argument on this claim, however, OCI does not specify whether it contends the trial court should have changed the jury's answer to the question on its negligence or that the court should have granted a new trial on the issue of its negligence. In the trial court, OCI moved both to change the jury's answers to the questions on its negligence and causation and for a new trial "on the grounds that the verdict is perverse and against the interest of justice." In its trial court brief, OCI cited "the grossly unfair and lopsided apportionment of negligence" as evidence that the verdict was perverse and unjust.

¶ 30. OCI does not renew its perversity and interest of justice arguments on appeal, and we thus construe its assertion of insufficient evidence as a claim that the trial court erred in denying its motion to change the verdict answer on the negligence question. Our interpretation of OCI's appellate argument finds additional support from the fact that OCI asks in the conclusion of its brief, not for a new trial, but that we reverse the judgment against it and remand with instructions "to dismiss the negligence claim against OCI." Finally, we note that OCI embraces the following as the proper standard for our review of its challenge to the sufficiency of the evidence of its negligence: "[T]he standard of review for a jury verdict is that it will be sustained if there is any credible evidence to support the verdict, especially if the verdict has the circuit court's approval." This is the standard applicable to a trial court's action on a motion to direct a verdict or to change verdict answers, not that applicable to a new trial request.

¶ 31. Accordingly, our duty is to search the trial record for credible evidence to sustain the jury's verdict, not for evidence to sustain a verdict that the jury could have reached but did not. See Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 450-51, 280 N.W.2d 156 (1979). Matters relating to the credibility of witnesses and the weight given to their testimony are "left to the judgment of the jury, and where more than one reasonable inference can be drawn from the evidence, this court must accept the inference drawn by the jury." Id. at 450. Applying these principles, we conclude the record contains credible evidence to support the jury's finding of negligence on OCI's part.

¶ 32. OCI was in charge of coordinating the project. The various contractors performed much of their work, not simultaneously, but in sequence, and it was thus OCI's responsibility to ensure that necessary information was communicated to and among the contractors as they performed their work. OCI's project supervisor testified that he was responsible for providing information to Dorschner as to how deep to dig the excavation for the footing and that Dorschner would have relied on him for that information. The supervisor testified that he was aware Baumgart laid the pipe too shallow, placing it within an inch of the bottom of the trench to be excavated by Dorschner. He also admitted that, as the project supervisor, he did not have "a good hold" on whether the subcontractors were following the architectural plan. Finally, the supervisor testified that, when Dorschner excavated the trench for the footings, the water pipe was exposed and could be seen in the excavation trench, but he did not go down into the trench to see if the pipe had been damaged.

¶ 33. The water lateral pipe was not tested after Dorschner completed its work, despite the fact that a test would have been performed free of charge by the City of New London. OCI's supervisor testified that he was not aware that a free test was available from the city. He reasoned that, had Dorschner struck the pipe, Dorschner would have told him because it would have been an easy and inexpensive matter to replace the pipe at that time. The supervisor further testified that he did not believe it was OCI's responsibility to re-test the pipe after Dorschner completed its work because the pipe had already been tested after Baumgart installed it. Finally, the project architect testified that OCI had asked him to specify the location for the water lateral, and that he was not informed that the water line was in fact laid in a location different than that specified in the architectural plan, a fact that was known to OCI.

¶ 34. After reviewing the record, we agree with OCI that the jury might have concluded that Dorschner alone, or perhaps Dorschner and Baumgart together, bore the lion's share of the responsibility for what happened to the water pipe and the resulting damage to the church. As we have noted, however, OCI has abandoned its challenge to the apportionment of causal negligence. Although we think it unlikely, a jury might even have concluded on the present record that OCI's conduct was not negligent, or that it did not contribute to the loss Trinity suffered. The present jury, however, concluded otherwise, and the only question before us, as OCI itself acknowledges, is whether the record contains "any credible evidence" to support the jury's finding that OCI was negligent. We conclude that the record contains such evidence. We therefore sustain the jury's verdict.

Trinity's Cross-Appeal

¶ 35. Trinity cross-appeals, challenging the trial court's failure to change the jury's verdict answer finding that Dorschner did not breach its contract with Trinity. Trinity argues that "the jury's factual determination that Dorschner struck and cracked the pipe constitutes a breach of its contract as a matter of law." Trinity asks that we remand with instructions that the verdict be changed to state that Dorschner was not only causally negligent but also that it breached its contract with Trinity. Dorschner responds that if we reject OCI's appeal and affirm the judgment as entered, "there will be no reason for this Court to decide the breach of contract question as Trinity will be able to recover the full measure of its damages from OCI."

¶ 36. In reply, Trinity does not refute or otherwise discuss Dorschner's assertion that our affirmance of the appealed judgment essentially "moots" the cross-appeal. Generally, we will deem arguments that are not refuted to be conceded. See State v. Krueger, 2001 WI App 76, ¶ 67, 242 Wis. 2d 793, 626 N.W.2d 83. Having affirmed the judgment in Trinity's favor permitting it to recover its stipulated damages against OCI, Dorschner and Baumgart, we fail to see (and Trinity does not tell us) what difference a change to the jury's answer on the breach of contract question would make. Accordingly, we affirm the trial court's denial of Trinity's postverdict motion on this issue.

CONCLUSION

¶ 37. For the reasons stated above, we affirm the appealed and cross-appealed judgment in all respects. Because Dorschner has prevailed as a respondent in both the appeal and cross-appeal, it is allowed its costs against OCI and Trinity per Wis. Stat. Rule 809.25(1). Trinity has prevailed as a respondent but not as the cross-appellant, and we deny costs to Trinity. See 809.25(l)(a)5.

By the Court. — Judgment affirmed.

       1n the remainder of this opinion, we refer to Trinity Lutheran Church and Guide One Mutual Insurance Company collectively as "Trinity."

       Dorschner does not appeal the judgment against it for 20% of Trinity's damages plus costs. Although Baumgart filed postverdict motions to change the verdict answers determining that it was 20% causally negligent, which the court denied, it does not appeal or otherwise appear in this appeal.

       There seems to be little dispute among the parties that Dorschner's contract with Trinity was for excavation services. Dorschner did not raise the economic loss doctrine as a defense against Trinity's claim.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Trinity cites two unpublished cases for the proposition that the economic loss doctrine does not apply to services contracts. We call counsel's attention to Wis. Stat. Rule 809.23(3).

       Trinity also argues that the economic loss doctrine should not apply because there was no "defective product" involved in this case, in that the water lateral, as supplied and installed by Baumgart, was not defective. Rather, as relevant to this appeal, Trinity maintains that its claim involves the negligence of Dorschner and OCI in damaging a perfectly good water pipe after it was installed in the project, thereby causing water damage to the church building. Because we agree with Trinity's services-contract argument, we do not address whether other theories might be available to avoid the economic loss doctrine on the present facts.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

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

    Court of Appeals

      No. 2005AP890.

      Submitted on briefs December 15, 2005.

      Decided January 18, 2006.

    2006 WI App 30
    (Also reported in 710 N.W.2d 525.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of Len Kachinsky of Sisson and Kachinsky Law Offices, Appleton.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Sally L. Wellman, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Snyder, PJ., Brown and Anderson, JJ.

       Petition to review denied 3-15-06.

   ANDERSON, J.

¶ 1. Jonathan Bell appeals from a judgment and an order committing him as a sexually violent person pursuant to Wis. Stat. ch. 980 (2003-04). The first evaluation of Bell for ch. 980 purposes resulted in a finding that he was not a sexually violent person. The district attorneys responded by contacting the Department of Corrections (DOC), expressing their dissatisfaction with this finding and requesting a second evaluation. Bell argues that the district attorneys' actions violated Wis. Stat. § 980.02(1) and his right to due process. We disagree and hold that while the legislature structured ch. 980 so as to remove from political pressure the initial decision of whether a petition for commitment should be filed, ch. 980 permits a district attorney to have some input prior to the making of that threshold decision. We also reject Bell's due process challenge. We affirm.

Facts

¶ 2. The facts are brief and largely undisputed. In 1996, Bell was convicted of one count of second-degree sexual assault of a child and one count of third-degree sexual assault. Bell's amended sentence included a seven-year prison term.

¶ 3. In March 2002, Dr. Cynthia Marsh conducted an evaluation of Bell. Marsh is a special-purpose evaluator with the DOC who performs Wis. Stat. ch. 980 evaluations. The parole board had requested an evaluation of Bell to determine whether he was ready to be released on his mandatory release date. Marsh concluded that there was a substantial probability that Bell would reoffend in a sexually violent way.

¶ 4. In July 2003, as his August release date approached, Marsh conducted another evaluation of Bell. Following this evaluation, Marsh determined that Bell no longer met the criteria for being a sexually violent person.

¶ 5. After Marsh filed her report with the DOC, she received a telephone call from Washington County Assistant District Attorney Holly Bunch. According to Marsh, Bunch was "upset that [she] had changed [her] opinion." Bunch asked whether there was any way Marsh would change her opinion. Marsh informed her that only new information would allow her to change her opinion. Thereafter, Washington County District Attorney Todd Martens wrote the Secretary of the DOC and asked for a second opinion. Dr. Anna Salter, a licensed psychologist, conducted the second evaluation. Salter concluded that there was a substantial probability that Bell would engage in acts of sexual violence.

¶ 6. The DOC referred the matter to the Department of Justice (DOJ) and requested that it file a Wis. Stat. ch. 980 petition. The DOJ informed the Washington County District Attorney's office that it would not file a ch. 980 petition. At the request of the Washington County District Attorney's office, the Milwaukee County District Attorney's office filed the ch. 980 petition against Bell prior to his release date. The State requested and the court ordered a jury trial.

¶ 7. Bell filed a motion to dismiss. Bell argued that by contacting his evaluator and the DOC and requesting a second opinion, the Washington County District Attorney's office violated Wis. Stat. ch. 980 and his due process rights. The trial court denied the motion. Following trial, a jury determined that Bell was a sexually violent person. The trial court issued a judgment and an order for commitment.

Standard of Review

¶ 8. Bell presents questions of statutory and constitutional interpretation and application. We must therefore decide questions of law, which we do independently of the trial court's analysis and conclusions. See State v. Matke, 2005 WI App 4, ¶ 4, 278 Wis. 2d 403, 692 N.W.2d 265, review denied, 2005 WI 60, 281 Wis. 2d 113, 697 N.W.2d 471 (interpretation and application of a statute and constitution are questions of law).

Discussion

¶ 9. On appeal, Bell renews the arguments he made before the trial court. As noted, he complains that the actions of the Washington County District Attorneys' office violated Wis. Stat. ch. 980 and his right to due process. Bell argues that allowing local district attorneys to have input in an agency's decision on whether to file a ch. 980 petition subverts the legislative intent to insulate the decision to file a petition from political pressures and permits the careful screening process established by the legislature to be rendered meaningless.

¶ 10. Wisconsin Stat. ch. 980 creates an involuntary civil commitment procedure that is intended primarily to provide treatment for sexually violent persons and to protect the public. State v. Byers, 2003 WI 86, ¶ 14, 263 Wis. 2d 113, 665 N.W.2d 729. Wisconsin Stat. § 980.02, titled "Sexually violent person petition; contents; filing," provides in part:

(1) A petition alleging that a person is a sexually violent person may be filed by one of the following:
(a) The department of justice at the request of the agency with jurisdiction, as defined in s. 980.015 (1), over the person....
(b) If the department of justice does not file a petition under par. (a), the district attorney for one of the following:
1. The county in which the person was convicted of a sexually violent offense ....
2. The county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole or extended supervision, or release from imprisonment, from a secured correctional facility....

Thus, pursuant to the statute's express language, the authority to actually file a ch. 980 petition is limited to the DOJ and the appropriate district attorneys. Further, the DOJ's authority to file a petition is plainly premised upon an initial referral of the matter by the "agency with jurisdiction," which was the DOC in this case. However, the statute does not clearly set the limits on the district attorney's authority in the determination of whether to file a petition in a particular case.

¶ 11. Our supreme court defined the scope of the district attorney's authority in Byers. In Byers, two separate evaluators of Byers concluded that he did not meet the criteria for referral under Wis. Stat. ch. 980. Byers, 263 Wis. 2d 113, ¶ 2. Thus, the DOC did not request that the DOJ or the district attorney file a ch. 980 petition against Byers. Byers, 263 Wis. 2d 113, ¶ 2. Thereafter, the district attorney arranged for an independent evaluation of Byers, which resulted in a finding that Byers met the criteria for a ch. 980 proceeding. Byers, 263 Wis. 2d 113, ¶ 3. The district attorney then filed a petition for commitment against Byers prior to his release date. Id. Byers moved to dismiss the petition, claiming that the district attorney did not have the authority to file the ch. 980 petition without the DOC requesting that such a petition be filed and the DOJ declining to file the petition. Byers, 263 Wis. 2d 113, ¶ 4.

¶ 12. Our supreme court held that pursuant to Wis. Stat. § 980.02(1), a request from the agency with jurisdiction, in that case the DOC, and a subsequent decision by the DOJ not to file are prerequisites to a district attorney's authority to file a Wis. Stat. ch. 980 petition. Byers, 263 Wis. 2d 113, ¶ 43. The court explained that the legislature intended to set forth a step-by-step process for determining when a ch. 980 petition can be filed that placed the agency with jurisdiction in the elevated role of gatekeeper. See Byers, 263 Wis. 2d 113, ¶ 42.

¶ 13. The court cited several policy reasons that support placing the agency with jurisdiction in a gatekeeper role that limits the district attorney's authority. Id., ¶¶ 38-41. The court observed that the agency with jurisdiction likely has had the most recent contact with the person, the most comprehensive information regarding the person's status under Wis. Stat. ch. 980 and the most significant amount of knowledge in supervising and dealing with sexual offenders in general. Byers, 263 Wis. 2d 113, ¶¶ 39-40. The court also noted that a gatekeeper role for the agency with jurisdiction would facilitate the creation of a consistent, centralized and coordinated process for filing ch. 980 petitions. Byers, 263 Wis. 2d 113, ¶¶ 40-41. Finally, the court stated that "the use of the independent expertise of the agency with jurisdiction can be a tool for ensuring that the decision to file a [ch.] 980 petition is insulated from local pressures." Byers, 263 Wis. 2d 113, ¶ 41.

¶ 14. Thus, Byers teaches us that for reasons of sound public policy the legislature vested the agency with jurisdiction with the authority to make the threshold determination of whether a Wis. Stat. ch. 980 petition for commitment should he filed in a particular case. Byers tells us that by structuring the filing of ch. 980 petitions as a step-by-step process with the agency as gatekeeper, the legislature intentionally limited the role of the district attorney in order to keep the decision to file a petition free of political taint. However, contrary to Bell's arguments, allowing a district attorney to have some input in the threshold decision of whether a ch. 980 petition should be filed does not contravene the legislature's policy determination.

¶ 15. The threshold decision of whether a petition should be filed remains in the experienced and able hands of the agency with jurisdiction and outside of the political process. A district attorney may contact the agency to seek clarification of the Wis. Stat. ch. 980 evaluator's determination, to correct factual mistakes, to provide new or additional information, or to ask for a second opinion with a different evaluator. However, as the trial court recognized, the agency can independently exercise its judgment and choose to ignore the district attorney's efforts or to decline the district attorney's request for a second evaluation if the agency determines that these efforts and requests are improperly politically motivated. Further, even if the agency accepts an invitation to obtain a second evaluation, the agency can thereafter refer the case to the DOJ for commitment proceedings or it can adhere to its original decision not to request that the DOJ file a petition.

¶ 16. Wisconsin Stat. ch. 980, when read in its entirety, supports our conclusion. First, there is nothing in the chapter that expressly prohibits a district attorney from contacting the appropriate agency about a case, expressing its dissatisfaction with an evaluation and requesting a second opinion. Second, the notification provision, Wis. Stat. § 980.015, suggests that the legislature envisioned that the DOJ and the district attorney would have some input in the commitment decision. Section 980.015 requires the agency with jurisdiction to inform the DOJ and the appropriate district attorney of the anticipated release of a potentially sexually violent person as soon as possible, beginning three months prior to the person's release. The notice from the agency with jurisdiction must contain specified information including a person's offense history and documentation regarding any treatment. Id. There would be no need for such notification if the legislature intended to prohibit the DOJ and the district attorney from engaging in a discussion with the agency about the status of a potentially sexually violent person.

¶ 17. In this case, the Washington County District Attorney's office did not overstep its authority. The record shows only that after Marsh filed her evaluation of Bell finding that he was not a sexually violent person, the assistant district attorney called her to ask if she would change her opinion and the district attorney wrote a letter to the secretary of the DOC requesting a second opinion. The DOC chose to obtain a second evaluation of Bell, whom Marsh had recently labeled a sexually violent person. On the basis of that second evaluation, the DOC determined that Bell was an appropriate subject for a Wis. Stat. ch. 980 petition and referred the matter to the DOJ. The DOJ then independently decided not to file a petition against Bell. After these two steps in the process were complete, the Milwaukee County District Attorney's office filed the petition against Bell.

¶ 18. In an effort to show a violation of his due process rights, Bell claims that the assistant district attorney and district attorney tried to "jawbone DOC into securing a second opinion" and that Salter's second opinion came as a result of "politically-motivated bullying." Bell greatly exaggerates the conduct of the Washington County District Attorney's office. There is simply no evidence suggesting that the district attorney's office forcefully usurped the authority of the DOC and effectively made the commitment decision on its own. Absent such evidence, we refuse to entertain Bell's otherwise unsupported and undeveloped due process challenge.

¶ 19. In sum, we hold that the conduct of the Washington County District Attorney's office did not violate Wis. Stat. ch. 980 or Bell's due process rights. The prerequisites for the authority of the district attorney's office to file the ch. 980 petition against Bell — the referral from the DOC and the decision by the DOJ not to file — were met. The judgment and commitment order are affirmed.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       "Agency with jurisdiction" means the agency with the authority or duty to release or discharge the person whose potential commitment is under review. See Wis. Stat. § 980.015(1).


text:
    State of Wisconsin, Plaintiff-Respondent, v. Sean M. Daley, Defendant-Appellant.
    Supreme Court

      No. 2005AP48-CR.

      Decided March 16, 2006.

    2006 WI 25
    (Also reported in 710 N.W.2d 904.)
   The Court entered the following order on this date:

Defendant-appellant-petitioner, Sean M. Daley, has filed a petition for review. The State has filed a response that the court of appeals' decision in this case conflicts with binding precedent, State v. Barney, 213 Wis. 2d 344, 570 N.W.2d 731 (Ct. App. 1997). Having considered the petition for review and the State's response,

IT IS ORDERED the petition for review is granted, the court of appeals' decision is vacated and this matter is remanded to the court of appeals for further proceedings in light of Barney.

IT IS FURTHER ORDERED that the proceedings in this court are held in abeyance pending remand, and while the appellate court conducts proceedings on remand, this court retains jurisdiction over the petition for review and the parties are instructed to inform this court of the outcome on remand.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Mark E. Sostarich, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Mark E. Sostarich, Respondent.
    Supreme Court

      No. 2004AP1911-D.

      Decided March 17, 2006.

    2006 WI 24
    (Also reported in 710 N.W.2d 904.)
   PER CURIAM.

¶ 1. We review a referee's report recommending that Attorney Mark E. Sostarich's license to practice law in Wisconsin he reinstated. The Office of Lawyer Regulation (OLR) and the Board of Bar Examiners (BBE) have both joined in that favorable recommendation.

¶ 2. After careful consideration, we adopt the referee's findings of fact and conclusions of law and conclude that Attorney Sostarich's license to practice law should be reinstated. We direct Attorney Sostarich to pay the costs of the reinstatement proceeding.

¶ 3. Attorney Sostarich was admitted to practice law in Wisconsin in 1978. On May 18, 2004, this court summarily suspended his license to practice law upon learning that he had pled guilty in federal court to one count of conspiracy to commit offenses involving federal program funds under Title 18, U.S.C. §§ 371, 666, 1341 and 1346 in connection with a public corruption scandal involving former Senator Gary George. United States v. Sostarich, No. 03 CR 260 (E.D. Wis. 2005). See SCR 22.20(1).

¶ 4. An attorney disciplinary investigation was conducted and on June 29, 2005, this court suspended Attorney Sostarich's license to practice law for a period of 18 months. In so doing we rejected as insufficient the referee's recommendation for a 12-month suspension. We ruled that Attorney Sostarich had committed a criminal act that reflected adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b) when he engaged in the conduct resulting in the aforementioned criminal conviction. The suspension was imposed retroactive to the date his summary suspension took effect. Attorney Sostarich was also directed to pay the costs of that disciplinary proceeding. See In re Disciplinary Proceedings Against Sostarich, 2005 WI 97, 282 Wis. 2d 712, 698 N.W.2d 711.

¶ 5. Attorney Sostarich now seeks reinstatement of his license to practice law in Wisconsin. Consistent with our standard practice, the matter was submitted to a referee for consideration.

¶ 6. On December 21,2005, Referee Kim Peterson conducted a formal hearing on the reinstatement petition. Referee Peterson filed a report and recommendation on January 18, 2006, recommending this court grant the petition for reinstatement. The OLR and the BBE have both joined in that favorable recommendation.

¶ 7. SCR 22.31(1) provides the standard to be met for reinstatement of a law license. The petitioner must meet the burden of demonstrating "by clear, satisfactory, and convincing evidence" that the lawyer has the moral character to practice law, that the lawyer's resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that the lawyer has complied with SCR 22.26 and the terms of the suspension.

¶ 8. In addition, SCR 22.29(4) sets forth related requirements that a petition for reinstatement must show. All of these additional requirements are effectively incorporated into SCR 22.31(1).

¶ 9. Here, the referee concluded that Attorney Sostarich had met all of the criteria for reinstatement, including compliance with repayment obligations, and has met his burden of demonstrating that his license to practice law in Wisconsin should be reinstated. The referee specifically noted that "the prior misconduct, for which Mr. Sostarich was sanctioned, is really an aberration in his life as an attorney, and not part of a pattern of improper behavior."

¶ 10. We note further that Attorney Sostarich cooperated fully in the underlying federal criminal proceeding, self-reported his conviction to the OLR, and is complying fully with the criminal penalties imposed upon him in the criminal proceeding. On March 11, 2005, Attorney Sostarich was sentenced in federal court to three years probation, conditioned on 150 days of home confinement with the usual conditions of home confinement, including electronic monitoring. He was also ordered to pay restitution to the Police Athletic League in the amount of $42,649 and to perform 75 hours of community service. We note that during the sentencing proceeding in the federal court, the sentencing judge considered Attorney Sostarich's significant health concerns, commented that there was no real financial gain to Attorney Sostarich, and commented very favorably on Attorney Sostarich's otherwise stellar record of community and public service.

¶ 11. After careful review of the record we agree that Attorney Sostarich has established by clear, satisfactory, and convincing evidence that he has satisfied all the criteria necessary for reinstatement. We note further that he was suspended for a period of 18 months and his license has now been under suspension nearly two years.

¶ 12. Accordingly, we adopt the referee's findings of fact and conclusions of law and we accept the referee's recommendation to reinstate Attorney Sostarich's license to practice law in Wisconsin. We direct Attorney Sostarich to pay the costs of this reinstatement proceeding, which total $2022.35 as of March 2, 2006.

¶ 13. IT IS ORDERED that the petition for reinstatement of the license of Mark E. Sostarich to practice law in Wisconsin is granted, effective the date of this order.

¶ 14. IT IS FURTHER ORDERED that within six months of the date of this order Mark E. Sostarich pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Mark E. Sostarich to practice law in Wisconsin shall be suspended until further order of the court.

¶ 15. DAVID T. PROSSER and LOUIS B. BUTLER, JR., J.J. took no part.

       SCR 22.20(1) provides: Summary license suspension on criminal convictions.
      (1) Summary suspension. Upon receiving satisfactory proof that an attorney has been found guilty or convicted of a serious crime, the supreme court may summarily suspend the attorney's license to practice law pending final disposition of a disciplinary proceeding, whether the finding of guilt or the conviction resulted from a plea of guilty or no contest or from a verdict after trial and regardless of the pendency of an appeal.


text:
    In the Matter of Medical Incapacity Proceedings Against Anne Kathleen Reilly, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Anne Kathleen Reilly, Respondent.
    Supreme Court

      No. 2005AP839-D.

    Decided March 28, 2006.

    2006 WI 29
    (Also reported in 711 N.W.2d 267.)
   The Court entered the following order on this date:

On March 30, 2005, the Office of Lawyer Regulation (OLR) filed a petition pursuant to SCR 22.34 asking that Attorney Anne Kathleen Reilly be found to have a medical incapacity.

Attorney Reilly was admitted to practice law in Wisconsin in 1984 and resides in the Shawano, Wisconsin area. On September 20, 2004 this court suspended her license to practice law in Wisconsin pursuant to SCR 22.21(1) because it appeared that her continued practice of law posed a threat to the interest of the public and the administration of justice.

The Honorable Konrad Tuchscherer was appointed referee in this matter. The referee appointed counsel to represent Attorney Reilly. The referee granted Attorney Reilly multiple extensions of time to file an answer to the OLR's petition. No answer or other pleading was filed. The OLR moved for a default judgment. The referee granted the motion for default judgment on December 7, 2005. On February 6, 2006 the referee issued his report and recommendation in which he found that Attorney Reilly suffers from a medical condition that substantially prevents her from performing the duties of an attorney to acceptable professional standards. The referee recommended that Attorney Reilly's license be indefinitely suspended. He also recommended that, as a condition for reinstatement, Attorney Reilly provide the OLR with sufficient medical records and a physician's report to exhibit her medical capacity to practice law. As a second condition of reinstatement, the referee recommended that Attorney Reilly pay the costs of the proceeding. The OLR filed a statement of costs in the amount of $1,104.33. It also filed a motion asking this court to order Attorney Reilly to reimburse the Lawyer Regulation System for the fees of her appointed counsel, which are in the amount of $6,171.18. This court agrees with the referee's conclusion regarding Attorney Reilly's medical incapacity, and it agrees with the referee's recommendation regarding the suspension of her license to practice law. It further agrees that, as a condition of the reinstatement of her license to practice law, Attorney Reilly pay the costs of the proceeding as well as the fees for her appointed counsel.

IT IS ORDERED that, effective the date of this order, the license of Attorney Anne Kathleen Reilly to practice law in Wisconsin is indefinitely suspended.

IT IS FURTHER ORDERED that, as a condition of the reinstatement of her license to practice law, Attorney Reilly provide the OLR with sufficient medical records and a physician's report to exhibit her medical capacity to practice law.

IT IS FURTHER ORDERED that, as an additional condition of the reinstatement of her license to practice law, Attorney Reilly pay the costs of this proceeding and the fees of her appointed counsel.

ROGGENSACK, J., took no part.