author: CANE, C.J.

text:
    Nicholas S. Schreiner and Nicole J. Schreiner, Plaintiffs, State of Wisconsin Division of Health & Family Services, Wisconsin Physicians Service Insurance Corp., and Tommy Thompson, Secretary of Department of Health & Family Services, Subrogated-Plaintiffs, v. Wieser Concrete Products, Inc. and Westfield Insurance Co., Defendants-Third-Party Plaintiffs-Co-Appellants, Poly-America, LP, Poly-America, Inc. and Up North Plastics, Inc., Defendants-Respondents, Henry Huffcutt Co., Inc., Defendant-Third-Party Plaintiff-Appellant, v. Schreiner Farms, Inc., Third-Party Defendant, McMillan-Warner Mutual Insurance Co., Intervening-Defendant.
    Court of Appeals

      No. 2005AP1142.

      Submitted on briefs April 18, 2006.

      —Decided June 13, 2006.

      2006 WI App 138
    (Also reported in 720 N.W.2d 525.)

      On behalf of the defendant-third-party-plaintiff-appellant, the cause was submitted on the briefs of John R. Runde of Terwilliger, Wakeen, Piehler & Conway, S.C. of Wausau.
    On behalf of the defendants-third-party-plaintiffs-co-appellants, the cause was submitted on the briefs of Brian A. Wood, William L. Davidson, and Jason R. Prochnow of Lind, Jensen, Sullivan & Peterson of Minneapolis, MN.

      On behalf of the defendants-respondents, the cause was submitted on the brief of Robert L. Binder of Foley, & Lardner LLP of Milwaukee.
    Before Cane, C.J., Hoover, RJ., and Peterson, J.

       Petition to review denied 9-11-06.

   CANE, C.J.

¶ 1. Wieser Concrete Products, Inc., Westfield Insurance Co., and Henry Huffcutt Co., Inc., appeal a summary judgment of the trial court dismissing Up North Plastics, Inc. They argue that whether Up North had a duty to warn is a fact question for the jury. Because Huffcutt and Wieser failed to support their theory of causation, a requirement in a duty to warn case, we affirm the summary judgment.

Background

¶ 2. Nicholas and Nicole Schreiner reside on a dairy farm. They employed a horizontal bunker silo system to store silage. The silo system was made of components manufactured by Wieser and Huffcutt. Plastic sheeting manufactured and sold by Up North covered the silage stored in the silo system. When a new crop of silage was packed on top of an older crop of silage, it was the farm's policy to first remove the plastic layer. According to Nicholas Schreiner, in 1999, farm employees were responsible for removing the plastic layer.

¶ 3. On December 3, 1999, silage collapsed on top of Schreiner when he was standing in front of the stacks, severely injuring him. At the time of the accident, there was a layer of silage on the top of the pile, sandwiched between two plastic sheets. Prior to the accident, silage stored in the bunker system reached a height one to two feet higher than the silo system could properly handle.

¶ 4. Schreiner's brother arrived at the accident scene within minutes after the silage collapsed. He testified that a layer of silage at the top of the pile sandwiched between two plastic sheets collapsed on Schreiner. Experts' opinions later supported the assertion that the presence of the plastic sheeting layer substantially contributed to the silage falling onto Schreiner.

¶ 5. Schreiner brought claims against Up North, based on its failure to provide sufficient operating instructions and warnings to advise the user to remove the plastic from the bunker silo system before adding a new layer of silage. Schreiner also contended Up North had a duty to warn about the safe use of silo systems generally.

¶ 6. Up North moved for summary judgment on the failure to warn claims. Schreiner did not oppose the motion. The trial court granted the motion, concluding that Schreiner's admission that it was his policy to remove the plastic sheeting layer before adding another layer of silage precluded a failure to warn claim. The court dismissed Schreiner's claims against Up North, as well as Wieser's crossclaim against Up North for indemnification and contribution. Wieser and Huffcutt appeal the dismissal of Up North.

Standard of Review

¶ 7. We review summary judgment without deference, using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08. Whether a manufacturer has a legal duty to warn users of dangers related to the use of its product is a question of law that we review without deference. Pomplun v. Rockwell Int'l Corp., 203 Wis. 2d 303, 307, 552 N.W.2d 632 (Ct. App. 1996).

Discussion

¶ 8. Wieser contends whether warnings would have prevented the accident is a fact question for the jury and, therefore, the court erred when it granted summary judgment. There are three elements to a duty to warn claim: (1) existence of a duty to warn; (2) proof of a failure to warn adequately; and (3) proof of causation of injury. See Kurer v. Parke, Davis, & Co., 2004 WI App 74, ¶ 24, 272 Wis. 2d 390, 679 N.W.2d 867. With its summary judgment, the trial court concluded there were disputed issues regarding the existence of a duty to warn and proof of failure to warn adequately. However, the trial court found that there was no issue of material fact regarding causation. "A plaintiff who has established both a duty and a failure to warn must also establish causation by showing that, if properly warned, he or she would have altered behavior and avoided injury." Id., 25.

¶ 9. We agree with the trial court that summary judgment was appropriate, especially in this case when Schreiner did not oppose Up North's motion for summary judgment. Schreiner was an experienced farmer, and the party primarily responsible for operating a large dairy farm. For years before the accident, the farm had a policy of removing plastic sheets before adding more silage. The employees and hired hands were instructed to completely remove the plastic layer before putting on another layer of silage. Thus, the trial court concluded that the absence of a warning on the plastic that directed a user to remove the plastic prior to adding more silage was not causal of Schreiner's injuries. In sum, the farm already had a policy to remove the plastic before adding silage, and therefore Schreiner already knew not to leave the plastic on the silage.

¶ 10. Huffcutt and Wieser argue, however, that there is expert evidence the plastic contributed to the collapse of the silage. The trial court properly concluded the fact that there is evidence the plastic played some part in the collapse is not dispositive of whether the lack of warning on the plastic layer contributed to the accident. The court stated and we agree:

[W]hether or not the plastic was a factor in the collapse does not really address whether or not Up North's breach of a duty to warn (assuming one existed) contributed to the plaintiffs injuries.... That evidence shows that the inclusion of a warning would not have prevented the accident, as was conceded by at least one of the opposing experts. Thus, the only conclusion that the evidence of record permits is that Up North's failure to include a warning was not a cause of Nicholas Schreiner's injuries.

The trial court referenced Wieser's expert John Johnson. Johnson was asked whether a warning on the plastic would have made a difference in this case, and he replied, "No, of course it wouldn't."

¶ 11. Wieser argues that Schreiner might not have been the person who left the plastic sheeting in the silage layers, and the person who did leave the plastic might not have been aware of the policy to remove the plastic. Thus, the assertion is that a warning on the plastic may have prompted that person to act differently. However, Wieser does not provide evidence that this unknown person actually exists, that this person was unaware of the farm's policy, and that he or she would have actually read the proposed warning on the plastic.

¶ 12. Further, Wieser's failure to support the preceding argument with evidence prevents it from barring summary judgment. Wisconsin Stat. § 802.08 states:

When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.

Thus, in response to a well-supported motion for summary judgment, "the opponent does not have the luxury of resting upon its mere allegation or denials of pleadings, but must advance specific facts showing the presence of a genuine issue for trial." Moulas v. PBC Prods., Inc., 213 Wis. 2d 406, 411, 570 N.W.2d 739 (Ct. App. 1997). Here, Wieser has not provided the necessary support for its speculation, and summary judgment was appropriate.

¶ 13. To survive summary judgment, Wieser needed to present evidence to demonstrate causation regarding the lack of a warning on the plastic. As we stated in Freer v. M&I Corp., 2004 WI App 201, ¶ 7,276 Wis. 2d 721, 688 N.W.2d 756:

In order to survive summary judgment, 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), pertinent to that element. (Citation omitted.)

Further, ”[t]he ultimate burden ... of demonstrating that there is sufficient evidence ... to go to trial at all" is on Wieser, "the party that has the burden of proof on the issue that is the object of the motion." See Transportation Ins. Co. v. Hunzinger Const r . Co ., 179 Wis. 2d 281, 290, 507 N.W.2d 136 (Ct. App. 1993). Due to the lack of evidence in the record regarding causation, the trial court did not err when it granted summary judgment.

¶ 14. Next, Huffcutt contends that Up North had a duty to warn that silage should not be loaded more than one or two feet above the bunker wall. We disagree. The Restatement (ThiRd) of Torts § 5 (1998), entitled "Liability of Commercial Seller or Distributor of Product Components for Harm Caused by Products Into Which Components are Integrated," states:

One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
(a) the component is defective in itself, as defined in this Chapter, and the defect causes the harm; or
(b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and
(2) the integration of the component causes the product to be defective, as defined in this Chapter; and
(3) the defect in the product causes the harm.

For Up North, a component manufacturer, to be held liable for the accident in the bunker system: (1) the plastic sheeting must have been defective and caused Schreiner's injuries; or (2) Up North must have substantially participated in integrating the plastic sheet into the silo system and that integration caused the silo system to be defective, which in turn caused the injuries to Schreiner.

¶ 15. We conclude that Up North had no duty to warn regarding the proper height to stack the silage. No party argues that the plastic sheeting was in any way defective. Also, no party contends that Up North participated in integrating the plastic sheeting into the silo system. Therefore, Up North had no duty to warn regarding general safe use of the silo system.

¶ 16. We agree with Up North that although Wisconsin has not previously adopted Restatement (Third) of Torts § 5, it is consistent with Wisconsin law. Our courts have previously declined to impose a duty to warn on a component manufacturer regarding the dangerous or defective product manufactured by another. For example, in Pomplun, 203 Wis. 2d at 308-09, the court declined to impose a duty to warn upon the manufacturer of a foot switch product against potential hazards in the use of the switch in a punch press that injured the plaintiff. In Shawver v. Roberts Corp., 90 Wis. 2d 672, 685-86, 280 N.W.2d 226 (1979), the Court declined to impose a duty to warn upon the manufacturer of a conveyer product when the conveyer was not defective. There, the control system was defective and the conveyer manufacturer had no involvement in the design and location of the controls.

¶ 17. Our holding is consistent with other jurisdictions which have held that an ancillary component manufacturer has no duty to warn regarding the dangers associated with a separate manufacturer's defective products. For example in Acoba v. General Tire, Inc., 986 E2d 288, 305 (Haw. 1999), the court held as a matter of law that a tire manufacturer and an inner tube manufacturer had no duty to warn a plaintiff about the dangers in a rim they did not manufacture. See also Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 472 (11th Cir. 1993); Walton v. Harnishfeger, 796 S.W.2d 225, 226 (Tex. Ct. App. 1990). Thus, other courts have held a manufacturer only owes a duty to warn regarding its own products, not products it did not manufacture, sell or otherwise place in the stream of commerce. See, e.g., Acoba, 986 P.2d at 305.

By the Court. — Judgment affirmed.


source: Caselaw Access Project

author: KESSLER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Donald Odom, Defendant-Appellant.
    Court of Appeals

      Nos. 2005AP1840-CR, 2005AP1841-CR.

      Submitted on brief s April 6, 2006.

    — Decided June 13, 2006.

    2006 WI App 145
    (Also reported in 720 N.W.2d 695.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Eileen Miller Carter.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Charlotte Gibson, assistant attorney general and Peggy A. Lautenschlager, attorney general.
    Before Wedemeyer, PJ., Curley and Kessler, JJ.
   KESSLER, J.

¶ 1. Donald Odom appeals from a judgment of conviction for burglary and from an order reconfining him to prison for a 2000 conviction for operating a vehicle without the owner's consent. He also appeals from an order denying his motion for postconviction relief. Odom argues that the trial court erroneously exercised its discretion when it sentenced him for the burglary and reconfined him for the revocation of his extended supervision. He also contends that the trial court erred when it sua sponte vacated Odom's sentence credit for one-hundred-and-two days on the 2000 case. The State concedes that Odom is entitled to one-hundred-and-two days of credit on each sentence. Therefore, we reverse the order reducing Odom's sentence credit and remand with directions to issue an amended reconfinement order granting Odom one-hundred-and-two days of credit on the reconfinement sentence. We reject all of Odom's other challenges, concluding that the trial court properly exercised its sentencing discretion, and affirm the judgment and orders in all other respects.

BACKGROUND

¶ 2. In 2000, Odom was convicted of operating a vehicle without the owner's consent (the "2000 conviction") and was sentenced to four years of initial confinement and five years of extended supervision. On May 4, 2004, he was released on extended supervision. According to the Department of Corrections ("Department"), from June 22, 2004, until he was arrested on November 4, 2004, Odom's whereabouts were unknown.

¶ 3. The Department sought to revoke Odom's extended supervision based on numerous violations, including not reporting to his parole agent, not reporting a change in his employment status, consuming cocaine and alcohol, being involved in three burglaries, and driving a vehicle without the owner's consent. Odom did not contest the revocation and he appeared before the trial court for sentencing after revocation. On the same day, Odom was also sentenced for the October 13, 2004 burglary of a store (the "2004 conviction"), a crime to which he pled guilty.

¶ 4. The trial court reconfined Odom for the entire time remaining on the 2000 conviction: four years, eleven months and nineteen days. On the 2004 conviction, the trial court imposed a sentence of seven- and-a half years of initial confinement and five years of extended supervision, to run concurrent with the 2000 conviction. The trial court found Odom eligible for the Earned Release Program.

¶ 5. Odom filed a motion for postconviction relief seeking resentencing on grounds that the trial court erroneously exercised its discretion when it imposed the sentences. The trial court denied the motion without a hearing. In its written order, the trial court found that it had not erroneously exercised its sentencing discretion. It also sua sponte found that excessive sentence credit had been awarded, reasoning that on the 2000 conviction Odom was entitled to sentence credit only from the date of his arrest through the date of revocation.

DISCUSSION

¶ 6. Odom argues that his sentences in both cases were too harsh and that the trial court failed to properly consider mitigating factors, rehabilitation, his level of culpability, the sentencing matrix and his substance abuse needs and progress. He also argues that the trial court failed to reference the original sentence or use the extended supervision revocation summary with respect to the 2000 conviction, and that the trial court erroneously vacated his sentence credit on the 2000 conviction.

I. Legal standards

¶ 7. The standard of appellate review of sentencing decisions is well-settled. "The trial court has great discretion in passing sentence." State v. Wickstrom, 118 Wis. 2d 339, 354, 348 N.W.2d 183 (Ct. App. 1984). This court will affirm a sentence imposed by the trial court if the facts of record indicate that the trial court "engaged in a process of reasoning based on legally relevant factors." Id. at 355. The primary factors for the sentencing court to consider are the gravity of the offense, the character of the offender, and the public's need for protection. State v. Larsen, 141 Wis. 2d 412, 427, 415 N.W.2d 535 (Ct. App. 1987). The weight given each of these factors lies within the trial court's discretion, and the court may base the sentence on any or all of them. Wickstrom, 118 Wis. 2d at 355. The court may also consider the following factors:

"(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant's personality, character and social traits; (4) result of pre-sentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant's culpability; (7) defendant's demeanor at trial; (8) defendant's age, educational background and employment record; (9) defendant's remorse, repentance and cooperativeness; (10) defendant's need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention."

State v. Harris, 119 Wis. 2d 612, 623-24, 350 N.W.2d 633 (1984) (citation omitted).

¶ 8. This court will sustain a trial court's exercise of discretion if the conclusion reached by the trial court was one a reasonable judge could reach, even if this court or another judge might have reached a different conclusion. See Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). This court is reluctant to interfere with the trial court's sentencing discretion given the trial court's advantage in considering the relevant sentencing factors and the defendant's demeanor. State v. Echols, 175 Wis. 2d 653, 682, 499 N.W.2d 631 (1993). Even in instances where a sentencing judge fails to properly exercise discretion, this court will "search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained." McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971).

¶ 9. In State v. Gallion, 2004 WI 42, ¶ 8, 270 Wis. 2d 535, 678 N.W.2d 197, the supreme court reaffirmed the McCleary sentencing analysis, which cited the importance of the sentencing court's consideration of "the nature of the offense, the character of the offender, and the protection of the public interest." McCleary, 49 Wis. 2d at 274 (citation omitted). McCleary also emphasized the importance of the sentencing court's exercise of discretion.

It is thus clear that sentencing is a discretionary judicial act and is reviewable by this court in the same manner that all discretionary acts are to be reviewed.
In the first place, there must be evidence that discretion was in fact exercised. Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning. This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards.

Id. at 277.

¶ 10. Gallion requires the trial court to explain the "linkage" between the sentence and the sentencing objectives. 270 Wis. 2d 535, ¶ 46. Although Gallion did not change the standard of review, "appellate courts are required to more closely scrutinize the record to ensure that 'discretion was in fact exercised and the basis of that exercise of discretion [is] set forth.'" Id., ¶ 76 (quoting McCleary, 49 Wis. 2d at 277) (alteration by Gallion).

¶ 11. A reconfinement hearing after revocation is a sentencing. State v. Brown, 2006 WI App 44, ¶ 9, 289 Wis.2d 691, 712 N.W.2d 899. Like initial sentences, this sentencing is within the trial court's discretion, and on appeal we review the sentence to determine whether that discretion was erroneously exercised. Id.

¶ 12. In reviewing that exercise of discretion, we must bear in mind that "a reconfinement hearing is simply an extension of the original sentencing proceeding, and thus, the trial court need not address all relevant factors" in explaining its sentence. Id., ¶ 17. Brown explained that "resentencing does not require an explicit delineation of the McCleary sentencing factors, as long as the court considered them earlier." Brown, 712 N.W.2d 899, ¶ 17. Thus, where the defendant did not contend that his initial sentencing hearing was deficient in any way, this court assumed that the trial court "touched on all the appropriate factors when deciding [the defendant's] original sentence" and considered only whether the trial court gave sufficient reasons for its reconfinement decision and whether its reasoning was sound. Id., ¶¶ 17, 18.

II. Sentencing

¶ 13. At the sentencing hearing on both the 2004 conviction and the revocation of extended supervision for the 2000 conviction, the trial court first confirmed that neither the State nor Odom had changes to the reconfinement memorandum, and then heard argument from the State. The prosecutor explained that Odom admitted coming upon a store that had already been broken into and taking property from the store. The prosecutor noted that it was not clear from the evidence whether that was accurate, or whether Odom was involved in actually breaking into the store. The trial court asked several questions about the burglary, attempting to assess Odom's involvement.

¶ 14. The prosecutor also provided information on an uncharged crime that Odom had agreed could be read-in: the August 2004 burglary of a home. The prosecutor indicated that Odom's fingerprint was found in the home. He said that although Odom initially denied involvement, he ultimately admitted that crime.

¶ 15. Next, the prosecutor summarized Odom's extensive criminal history, which included over twelve convictions, which had begun at age thirty when Odom became addicted to drugs and had continued through Odom's current age of forty-four. Odom's criminal history showed a progression of confinement, from probation to forty days of jail time, to six-to-nine months of confinement, to four years of confinement in prison. The prosecutor recommended that Odom be sentenced to prison, and noted that he did not object to the sentence being concurrent with the reconfinement order.

¶ 16. Odom's trial counsel acknowledged that Odom had numerous contacts with the criminal justice system and that Odom "is addicted to crack-cocaine." However, she emphasized that Odom had also accomplished many positive things in his life, including a successful twenty-year marriage, being a father to two children, post-high school education and lucrative employment. Trial counsel noted that Odom knows that his addiction is powerful, and that he will need to work hard to overcome his addiction. She also noted that Odom had accepted responsibility for his crimes.

¶ 17. Odom's trial counsel recommended that the trial court adopt the probation agent's recommendation and reconfine Odom for one year, five months and twenty-six days. She urged the trial court to sentence Odom to a concurrent burglary sentence.

¶ 18. Odom also addressed the trial court personally. He apologized for his crimes, and noted his optimism that he will be able to overcome his addiction to crack cocaine. He asked for a "second chance to carry out" his goals.

¶ 19. The trial court then stated that the recon-finement report noted some crimes that the prosecutor had not identified. The trial court also clarified with Odom that he had no juvenile record, and had not committed crimes until age thirty, when he became addicted to drugs. The trial court asked Odom what he had done to address his substance abuse problem. Odom candidly stated that at first, he tried to fight the addiction on his own, but had now recognized he may need therapy or other assistance.

¶ 20. The trial court then began to pronounce sentence. It commented that it did not believe it was necessary to resolve whether Odom had broken into the store himself, or whether he came upon it after others had broken in. The trial court stated: "Certainly, if [this] was a first occasion or even something close to it, I'd be more interested in whether you were the original burglar ... who had that initiative and greater culpability."

¶ 21. The trial court commented on the crimes at issue: the burglary, and the second burglary that was read-in. Then the trial court discussed Odom's criminal history and character:

You ask for a second chance, [and if] that phrase weren't so tragic [it] would be a joke.
We are talking about the 12th, or 15th or 20th chance here, depending on what we count over this history, some 14 years of struggling with this, the revolving door started a long time ago.
[A]s you note, you are the one who is responsible ultimately, you have to figure this out... you have to stop victimizing the public.
And within a few months of being out, there were not one, but two crimes here, and you basically absconded.
You were out of touch, you were not cooperating with the program at all and the risk of reoffense is extremely high here.
It is tragic because there is some significant positives here, more than I usually see, some significant period of life where you were apparently a productive, law-abiding citizen, got some education.
And even now, [your former employer] writes about what a great employee you are and it is a shame that you can't be allowed to pursue that....

¶ 22. The trial court said that given Odom's criminal history and current crime, "you're a candidate for maximum sentencing, but given the length of the reconfinement here, I'm going to impose a concurrent sentence." The trial court sentenced Odom to seven- and-a-half years of initial confinement and five years of extended supervision on the 2004 conviction, and re-confinement of four years, eleven months, nineteen days. The trial court found Odom eligible for the Earned Release Program, recognizing that may allow him to be released before he has served the full term of initial confinement.

¶ 23. The trial court's sentencing remarks, provided in detail above, provide adequate support for the trial court's exercise of discretion. The tried court discussed the primary factors for the sentencing court to consider: the gravity of the offense, the character óf the offender, and the public's need for protection. See Larsen, 141 Wis. 2d at 427.

¶ 24. Odom presents numerous challenges to the sentences. He argues that the trial court "disregarded" his positive attributes. On the contrary, the trial court acknowledged that Odom had been a productive member of society with an employer who liked him. However, the trial court recognized that the numerous crimes Odom had committed since the age of thirty stood in stark contrast to that past.

¶ 25. Odom also argues that the trial court "failed to recite the three primary factors a trial court must consider and its actual consideration did not meaningfully extend to all factors of relevance." While it is true that the trial court did not explicitly identify the three factors, it clearly discussed the three primary factors. It described the burglary for which Odom was convicted and the read-in burglary. It discussed Odom's criminal history, family and employment. It noted the need to protect the public from Odom's crimes, noting that Odom was at high risk to reoffend. To the extent the trial court placed greater emphasis on Odom's criminal history, that was within the trial court's power. See Wickstrom, 118 Wis. 2d at 355.

¶ 26. Odom contends that the trial court failed to explain its "leap to the highest sentence available [on the sentencing matrix] when the factors warranting a maximum sentence were not present." As the State notes, a trial court is not required to follow the sentencing guidelines, but only to explain its departure. See Wis. Stat. § 973.017(10); State v. Speer, 176 Wis. 2d 1101, 1125-26, 501 N.W.2d 429 (1993). The trial court explicitly addressed the matrix issue:

The sentence I have imposed is greater than the matrix suggests and I will indicate the reasons here why, it is primarily the lengthy record is there, and the promptness with which you reoffended and the read-in that caused me to feel that something more than the guideline worksheet matrix recommendation is required.

This explanation is sufficient to explain the trial court's departure. We also note that Odom's two sentences are concurrent; the trial court could have ordered the sentence for the 2004 sentence to be served consecutively, which would have increased Odom's confinement by nearly five years.

¶ 27. Odom argues that the trial court was inconsistent in evaluating his level of culpability for the burglary. We disagree. The trial court's explanation of the fact that it did not feel the need to resolve the question whether Odom actually broke into the store was satisfactory. The trial court's careful analysis does not, as Odom suggests, imply that the trial court was basing its sentence on hypothesis.

¶ 28. Next, Odom contends that the trial court "gave no value to substance abuse treatment needs and progress." We are not persuaded. Gallion did not change the principle that the trial court has the discretion to emphasize any of the sentencing factors as long as it considers all the pertinent factors. See State v. Stenzel, 2004 WI App 181, ¶ 9, 27.6 Wis. 2d 224, 688 N.W.2d 20. Here, the sentencing transcript reflects that the trial court considered all the pertinent factors, including the mitigating factors of Odom's remorse and need for treatment. It acknowledged its hope that Odom would beat his addiction, but opined that it would be difficult. In response to this consideration, the trial court ordered Odom eligible for the Earned Release Program, stating: "[S]o I am left trying to decide, do we give you . .. [another] chance here through the earned release program? A lot of other things will have to fall into place for you to do that, but I decided that after that much time in prison ... it is in our interest to try yet again before you get out." We discern no erroneous exercise of discretion or violation of Gallion in this record.

¶ 29. Finally, Odom objects to the imposition of "maximum sentences" on both matters. As the State notes, Odom's argument is misleading because Odom received concurrent sentences, reducing his confinement by nearly five years. Moreover, for the reasons detailed above, the trial court's sentence is justified by Odom's lengthy record and significant failures after numerous releases.

1H. Objections specific to the reconfinement

¶ 30. Odom presents arguments specific to the reconfinement order. He contends that the trial court failed to review the original sentence or sentencing transcript. He relies on State v. Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165, which held that "when the judge is not the one who presided at the original sentencing, it is particularly important that the judge, '[l]ike the appellate court,... be able to rely upon the entire record, including the previous comments at the first sentencing.'" See id., ¶ 9 (citation omitted; alterations, omissions and italics in original).

¶ 31. In response, the State argues that Reynolds does not apply. We agree. We addressed this issue in State v. Jones, 2005 WI App 259, 288 Wis. 2d 475, 707 N.W.2d 876, where we considered a defendant's sentencing after revocation of extended supervision, stating:

Reynolds holds that where the "record does not reflect the sentencing judge's awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in ... the withholding of sentence, resentencing is appropriate." Reynolds, 249 Wis. 2d 798, ¶ 2. We conclude that Reynolds is not applicable here because of a significant and meaningful difference in the procedural background. In Reynolds, the circuit court withheld sentence and placed Reynolds on probation; a different judge imposed sentence for the first time after revocation of Reynolds's probation. Id., ¶ 4. We conclude that Reynolds is not sufficiently analogous to the case at hand and reject [the defendant's] arguments to the contrary.

Jones, 288 Wis. 2d 475, ¶ 13. We are also satisfied that the trial court met the requirements for a sentencing after revocation of extended supervision, which were discussed in Brown, 712 N.W.2d 899, ¶ 17.

¶ 32. Finally, Odom argues that the trial court "did not use the [extended supervision] revocation summary." We disagree. The trial court referenced the summary, indicated that it had received the report and asked for any corrections. It explicitly rejected the report's recommendation, stating that in light of Odom's record, reconfinement as suggested (one year, five months, twenty-six days) "would he a joke." The trial court was not required to accept the recommendation, and the record shows that the trial court considered it. We reject Odom's argument.

IV Sentencing credit

¶ 33. Odom argues that the trial court erroneously amended its order to provide him only forty-eight days of sentence credit on the reconfinement sentence. He complains that the trial court failed to offer adequate reasons for this amendment.

¶ 34. The State concedes Odom is eligible for a full one-hundred-and-two days of sentence credit on both sentences, but not because the trial court erroneously exercised its discretion. See State v. Lange, 2003 WI App 2, ¶ 41, 259 Wis. 2d 774, 656 N.W.2d 480 (sentence credit determinations are a question of law). Rather, the State asserts that because Odom was sentenced on the same day to concurrent sentences for his revocation of extended release and the new burglary charge, he is entitled to dual credit. We agree. See State v. Presley, 2006 WI App 82, ¶ 15, 292 Wis.2d 734, 715 N.W.2d 713 ([D]defendant was "entitled to sentence credit on the new charge from the date of his arrest until the day of sentencing on both charges because while his extended supervision was revoked, his 'resen-tencing' had not yet occurred."). Therefore, we reverse the order reducing Odom's sentence credit and remand with directions to issue an amended reconfinement order granting Odom one-hundred-and-two days of credit on the reconfinement sentence.

By the Court. — Affirmed in part; reversed in part and cause remanded with directions.

       Odom also argues that the trial court erred when it did not grant his motion for resentencing, which was based on the same alleged sentencing errors. We will address all of Odom's challenges to his sentences at once, rather than examining the trial court's postconviction decision separately.

       Odom was also convicted of resisting or obstructing an officer. That sentence is not at issue in this appeal and will not be addressed.

       Odom's arguments focus primarily on the 2004 conviction, but some of his arguments relate to the reconfinement on the 2000 conviction. Therefore, we will consider the trial court's exercise of discretion with respect to both convictions.


author: PETERSON, J.

text:
    Sheila R. McDonald, Plaintiff-Respondent, v. Ardyth M. McDonald and A. McDonald, LLC, Defendants-Appellants.
    Court of Appeals

      Nos. 2005AP2346, 2005AP2369.

      Submitted on briefs May 30, 2006.

    — Decided June 13, 2006.

    2006 WI App 150
    (Also reported in 721 N.W.2d 524.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Kim M. Peterson of Eiche & Frakes, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Steven L. Miller of Miller & Miller, River Falls.

      Before Cane, C.J., Hoover, RJ., and Peterson, J.
   PETERSON, J.

¶ 1. Ardyth McDonald and A. McDonald, LLC (collectively, Ardyth) appeal foreclosure judgments on property located in Oconto and Brown Counties. Ardyth argues there was no consideration for the note underlying the mortgages and, therefore, Sheila McDonald's foreclosure claim must fail. We conclude the mortgages, signed under seal, are conclusive proof of consideration for both the mortgages and the underlying note they secure. Accordingly, we affirm the judgments.

¶ 2. Sheila moves for costs, contending Ardyth's appeal is frivolous because her arguments have no basis in fact or law and her appeal is moot because she satisfied the judgment. We conclude Ardyth's appeal has at least arguable merit and is not moot. Therefore, we deny Sheila's motion for costs on appeal.

BACKGROUND

¶ 3. Ardyth owned several retail businesses, which were managed by her son, Jon McDonald. As part of Jon's employment, he was supplied with a $500,000 life insurance policy. Jon's wife, Sheila, was the policy's primary beneficiary.

¶ 4. In December 1996, Jon assigned $200,000 of his life insurance to serve as collateral for a loan for Ardyth's business. In October 1997, Jon died. Shortly after, Ardyth and two of her children approached Sheila and told her she would be reimbursed for any life insurance proceeds that were paid to the bank as a result of the assignment. In November, Ardyth asked her attorney to prepare a promissory note for funds paid to the bank from the insurance proceeds, along with mortgage documents to secure the note.

¶ 5. In January 1998, $200,000 of Jon's life insurance proceeds were disbursed to satisfy Ardyth's loan. In May, Ardyth's attorney prepared a promissory note and two mortgages, one for property located in Oconto County and a second for property in Brown County. The note bore the date January 20, 1998, the date the life insurance proceeds were disbursed to the bank to pay the loan. Ardyth signed the mortgages under seal on May 17, 1998, and the mortgages were subsequently recorded. Ardyth also signed the note, but not under seal.

¶ 6. Monthly payments were made on the note until March 2000. Sheila gave notice of default and commenced these foreclosure actions in September 2004. Ardyth defended both cases by challenging consideration for the note. The Oconto County case was resolved on summary judgment. The circuit court concluded that the mortgage was an executed contract under seal, that consideration for the mortgage was therefore conclusively presumed, and that the mortgage's consideration also imported consideration for the note. Accordingly, the court granted summary judgment in Sheila's favor. The Brown County case was tried to the court, which, found there was consideration for the note and mortgage. The parties stipulated to the amount due and judgments were entered accordingly.

DISCUSSION

Consideration

¶ 7. Ardyth argues there was no consideration for the note. Whether a contract is supported by consideration presents a question of fact. Piaskoski & Assoc. v. Ricciardi, 2004 WI App 152, ¶ 7, 275 Wis. 2d 650, 686 N.W.2d 675. However, the interpretation of a contract and its application to undisputed facts is a question of law that we review independently. See id.

¶ 8. Sheila counters that Ardyth's arguments are contrary to Mitchell Bank v. Schanke, 2004 WI 13, 268 Wis. 2d 571, 676 N.W.2d 849. In Mitchell Bank, the note underlying a mortgage was lost. Id., ¶ 23. The circuit court concluded the missing note prevented the bank from proving the debt underlying the mortgage and therefore the mortgage lacked consideration. Our supreme court reversed because the mortgage was signed under seal, noting that "[u]nder Wisconsin law, when an executed contract is signed under seal, the seal is conclusive proof of. consideration, and consideration may not be impeached absent a factual showing of fraud." Id., ¶ 24. The Mitchell Bank court explained, "[A] seal imports consideration for the mortgage. This imports consideration for the note also. In absence of allegations of fact showing fraud the mortgage cannot be impeached for want of consideration." Id. (quoting Virkshus v. Virkshus, 250 Wis. 90, 93, 26 N.W.2d 156 (1947)).

¶ 9. Sheila argues that, under Mitchell Bank, because Ardyth signed the mortgages under seal, the seal is conclusive proof of consideration for the mortgages and the note. Sheila further contends that, because Ardyth makes no allegations of fraud, her challenge to the note for lack of consideration must fail. In reply, Ardyth attempts to distinguish Mitchell Bank. She points out that, in Mitchell Bank, the note and mortgage were signed at the same time, whereas here the note was signed five months before the mortgages. However, we are not persuaded that Mitchell Bank's holding, or the cases on which the holding relied, were contingent on simultaneous execution of the mortgage and note. As our supreme court explained, "If the mortgage can not be impeached for want of consideration, the denial of consideration of the note .. . becomes immaterial and presents no obstacle to foreclosure of the mortgage." Virkshus, 250 Wis. at 93. Ardyth's execution of the mortgages under seal is conclusive proof of consideration for both the mortgages and the underlying note.

Frivolous Appeal

¶ 10. Sheila moves for costs, alleging Ardyth's appeal is frivolous. Whether an appeal is frivolous is determined by this court as a matter of law. Tennyson v. School Dist. of Menomonie Area, 2000 WI App 21, ¶ 33, 232 Wis. 2d 267, 606 N.W.2d 594. Sheila argues Ardyth's appeal is frivolous because, under Wis. Stat. Rule 809.25(3)(c)2., she and her attorney "knew, or should have known, that the appeal... was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law."

¶ 11. Sheila contends that, because the mortgages were executed under seal, Ardyth's argument on appeal is squarely contrary to Mitchell Bank, and her brief-in-chief makes no attempt to distinguish the case or make a good faith argument that the case was wrongly decided. However, Ardyth's reply brief addresses and attempts to distinguish Mitchell Bank based on the difference between the date of the note and the date of the mortgage. We conclude her argument had at least a reasonable basis under the law.

¶ 12. Sheila also argues the appeal is frivolous because the issue raised on appeal is moot. "An issue is moot when its resolution will have no practical effect on the underlying controversy." State ex rel. Olson v. Litscher, 2000 WI App 61, ¶ 3, 233 Wis. 2d 685, 608 N.W.2d 425. Sheila contends the issue Ardyth raises, challenging the validity of the note, is moot because Ardyth has subsequently satisfied the judgment and the note and mortgages no longer exist.

¶ 13. Sheila supports her argument by citing Duncan v. Farm Credit Bank, 940 F.2d 1099 (7th Cir. 1991), in which the Duncans' appeal was dismissed as moot after they failed to stay judgment. However, Duncan involved a right of first refusal to repurchase foreclosed property; the Duncans' failure to stay judgment resulted in the property's sale to a third party. Id. at 1100. Here, the property merely secured a monetary debt; had Ardyth prevailed on appeal, the sum she paid to satisfy the judgment could have been repaid by Sheila. See Wis. Stat. § 806.09(1) ("If any judgment or part of a judgment is collected and such judgment is afterwards set aside or reversed, the trial court shall order the same to be restored with interest from the time of the collection...."). Under these circumstances, Ardyth's satisfaction of the judgment does not render her appeal moot, and Sheila's motion for costs on appeal is therefore denied.

By the Court. — Judgments affirmed. No costs on appeal.

       Because we conclude consideration is conclusively presumed as a matter of law by virtue of the mortgage being signed under seal, we need not address Sheila's alternative arguments that, in fact, the note was supported by consideration. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938) (only dispositive issues need be addressed).

       By order dated January 4, 2006, the appeals from the Oconto and Brown County judgments were consolidated for purposes of briefing and decision. Accordingly, we refer to Ardyth's appeal in the singular throughout this opinion.

       The note was in the amount of $210,000, reflecting the $200,000 life insurance proceeds, as well as $10,000 for credit card purchases Sheila made on behalf of Ardyth's business.

       The note is dated January 20, 1998, five months before the date appearing on the mortgages. However, the record shows all the documents were drafted by Ardyth's attorney in May 1998.

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