author: CANE, C.J.

text:
    In re the Marriage of: Linda M. Goberville, Petitioner-Respondent, v. Brad J. Goberville, Respondent-Appellant.
    Court of Appeals

      No. 04-2440-FT.

      Submitted on briefs December 30, 2004.

      Decided February 23, 2005.

    2005 WI App 58
    (Also reported in 694 N.W.2d 503.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of David J. Rice, of Eau Claire.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Kelly J. McKnight of Eau Claire.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. Brad Goberville appeals that portion of a divorce judgment ordering a physical placement schedule. Brad argues the trial court erroneously exercised its discretion by making no reference to the statutory factors set out in Wis. Stat. § 767.24(5) in its findings and by relying entirely on the guardian ad litem's recommendation. Because the record is insufficient to determine on what evidence the trial court relied and what process of reasoning it applied to the facts, we reverse the judgment in part and remand for further proceedings.

¶ 2. Linda and Brad Goberville were married in 1990 and have one child, Samuel, born in 1996. In August 2002, Linda petitioned for divorce. Because Linda and Brad did not initially agree on a placement schedule, a guardian ad litem was appointed to represent their son's best interest. On March 31, 2003, the guardian ad litem submitted a one and a half page preliminary report to the family court commissioner, recommending that Linda be granted sole legal custody and primary physical placement. The guardian ad litem also proposed a temporary placement schedule under which Brad would have Samuel every other weekend and either one afternoon and an overnight or two afternoons a week during the school year. The guardian ad litem based his recommendations on two meetings with each parent; he also talked to Samuel's kindergarten teacher and Linda's sister, Julie, who looked after Samuel when he came home from school.

¶ 3. After a temporary placement hearing, the family court commissioner awarded joint legal custody to Linda and Brad and ordered them to attend mediation. Rather than adopt the guardian ad litem's proposed placement schedule, the court commissioner awarded Brad placement every day from immediately after school until 6:30 p.m. and every other weekend. Linda and Brad completed mediation on May 29, 2003, and agreed to a parenting schedule for both the summer and school year. Under that plan, Samuel would spend alternate weekends and every Wednesday evening with his father during the school year.

¶ 4. On February 16, 2004, Brad proposed an alternative placement schedule that would roughly equalize Samuel's time with him. Linda requested that the parties continue to follow the schedule set out in the mediation agreement. On February 26, the action for divorce was tried.

¶ 5. Only two witnesses, Linda and Brad, testified at the trial. Brad requested that the court hear two other witnesses who could speak about his bond with Samuel. The court asked the attorneys and the guardian ad litem whether there was any dispute that Brad was a good father. When they agreed that was not a question, the court determined Brad's proposed witnesses were not "going to add anything," and they did not testify. Once the testimony concluded, the guardian ad litem told the court he had not filed a supplemental report, but rather had given his recommendations orally to Linda and Brad. He then proceeded to make a statement recommending the current schedule be maintained. The court agreed.

¶ 6. A trial court has "wide discretion in making physical placement decisions." See Wiederholt v. Fischer, 169 Wis. 2d 524, 530, 485 N.W.2d 442 (Ct. App 1992). What is in the child's best interests is a mixed question of law and fact. Id. at 530-31. The trial court's determinations on psychological factors are findings of fact and will not be set aside unless they are clearly erroneous. Id. Whether the trial court properly exercised its discretion is, however, a matter of law. See Seep v. State Personnel Comm'n, 140 Wis. 2d 32, 38, 409 N.W.2d 142 (Ct. App. 1987).

¶ 7. We will sustain discretionary acts as long as the trial court examined the relevant facts, applied a proper standard of law and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225 (1995). For an exercise of discretion to be reasonable, the court need not exhaustively analyze each piece of evidence, but it must articulate its findings and reasoning. See Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). "Discretion" entails a process of reasoning that depends on facts in the record or reasonably derived by inference from the record. Mullen v. Coolong, 153 Wis. 2d 401, 406, 451 N.W.2d 412 (1990). The court of appeals may thus look to the record, if necessary, for reasons to support the court's exercise of discretion. See Vier v. Vier, 62 Wis. 2d 636, 639-40, 215 N.W.2d 432 (1974).

¶ 8. Brad argues the trial court erroneously exercised its discretion when setting a physical placement schedule because it did not refer to any of the Wis. Stat. § 767.24(5) factors in its statement. He also argues that the court erred by basing its decision entirely on the guardian ad ¡item's recommendation. Although Brad presents these claims as alternative arguments, they are really two aspects of the same claim, that the trial court did not articulate its findings and reasoning and the record is insufficient to demonstrate that its decision was the result of discretion.

¶ 9. Although Brad argues that the trial court refers to no statutory factors, Linda counters that the court's statement contains at least indirect references to Samuel's age, Wis. Stat. § 767.24(5)(am)6.; the effect a change would have on him, § 767.24(5)(am)3.; and the guardian ad litem's report, § 767.24(5)(am)15. Linda further claims that the trial court's concern with minimizing change indicates it was considering "predictability and stability," pursuant to § 767.24(5)(am)8.

¶ 10. Linda might be correct that the trial court's comments imply a recognition of some statutory factors; but without any explicit findings, we cannot be certain which factors the court considered relevant or why. Given the facts in this case, Samuel's wishes, his developmental needs, and the willingness of each parent to support the other's relationship with Samuel would seem to be relevant factors. Yet nothing in the court's statement indicates they were considered. Nor was the testimonial evidence offered at trial sufficient to support a reasoned consideration of many of the relevant factors. Linda was not asked any questions about her son, his adjustment, or his needs, except whether he was "in good health." The only testimony about those issues came from Brad, who claimed the current placement schedule was too hectic for his son, that Samuel was not himself, and that he seemed run down.

¶ 11. Given this absence of references to the statutory factors, Brad argues that the trial courts placement decision must have depended entirely on the guardian ad litems recommendation. It is within the trial courts discretion to adopt the recommendation of a guardian ad litem. However, the role of the guardian ad litem is not to direct the trial courts judgment, but to act as an advocate in the childs best interests. See Wis. Stat. 767.045(4). The question is whether the court adopted the guardian ad litems recommendation because of an exercise of discretion or effectively substituted the guardian ad litems judgment for its own. To answer that question, we must look to the statements of the trial court and the guardian ad litem.

¶ 12. The trial court began by expressing faith in the reports of guardians ad litem. "The lawyers know it takes an awful lot to persuade me that the guardian ad litem is wrong. The attorneys that do this in Eau Claire do it very seriously make every effort to be accurate in their reports to the court so I don't need more testimony." As this court has said, however, the guardian ad litem is an advocate for the child's best interest, not a fact-finder or a consultant for the court. See. e.g., Hollister v. Hollister, 173 Wis. 2d 413, 419, 496 N.W.2d 642 (Ct. App. 1992). A trial court may decide, in individual cases, to weigh the guardian's recommendation more heavily than the other statutory factors. But it cannot rewrite the statute to create a fixed hierarchy of factors. Such a hierarchy would, among other things, shift the burden of proof to the party wishing to change a temporary placement schedule.

¶ 13. The trial court's statement suggests the courts decision was largely based on its belief the current placement schedule was working. The court stated it would not order a switch to equal time "just because Mr. Goberville would like that or that he thinks it is in his best interest." The court concluded: "just automatically going from a schedule that has been working to one of total fifty-fifty I don't think would be a good idea at this time."

¶ 14. A trial court might find a reasonable basis for such a belief and decision in a guardian ad litem's written report. In this case, however, the written report, which was filed in March, contains information only about interviews that had taken place the previous winter, before the temporary placement schedule had begun. It is thus difficult to see how it could serve as the basis for any conclusions about the success or failure of that schedule.

¶ 15. A trial court might also find a reasonable basis for supporting the guardian ad litem's recommendation in the guardian ad litem's oral statement at trial. Here, however, the guardian ad litem submitted no supplementary report explaining his recommendation. There is no evidence the guardian ad litem interviewed Linda or Samuel in the months after the temporary placement schedule had been put in place. The only evidence on this point is Brad's testimony that the guardian ad litem had not interviewed him since December of 2002. The guardian ad litem's statement suggests he may have discussed Samuel with his teacher — "Walking to Ms. Clark, his teacher, the schedule is — he's comfortable with it" — but provides no basis for any independent judgment of his conclusions. Most of the statement is couched in terms of general beliefs such as "I think young children need to know where they are going to stay" and "there needs to be a routine getting them off to school." To the extent the guardian ad ¡item's statement refers, as it does in these instances, to facts that are not in evidence, the trial court cannot rely on it. See. e.g., id. at 420-21.

¶ 16. The guardian ad litem did refer to several specific facts that emerged during his cross-examination of Brad. He noted that Brad missed a scheduled parent teacher conference and has communicated with Samuel's teacher only by notes. He also noted that Brad did not go to Linda's house to pick up Samuel. Beyond those two facts, it is impossible to know what information the guardian ad litem relied on to conclude the current schedule should be maintained. It is equally impossible to determine whether that recommendation was based on relevant statutory factors. The guardian ad litem's statement thus tells us nothing about the trial court's reasons for adopting the temporary schedule as the permanent one.

¶ 17. Finally, even if there was some evidence the temporary placement schedule was successful, that fact cannot be used to shift the burden to the party wishing change. While temporary hearing records may be relevant at the trial of a divorce action where custody is at issue, neither party has the burden of proving a material change in circumstance to warrant a different custodial determination than the one ordered as a result of the temporary hearing. Kuesel v. Kuesel, 74 Wis. 2d 636, 638-39, 247 N.W.2d 72 (1976). That same principle applies to physical placement. Brad should not have to bear a heavier burden than Linda simply because he is the one who desires a different physical placement schedule. A reasonable exercise of discretion could not involve such burden shifting.

¶ 18. Based on our scrutiny of the record, we conclude that neither the trial court's own statements about the placement decision nor the evidence before the court are sufficient to establish that the decision reflected a reasonable exercise of discretion. That portion of the judgment relating to physical placement is therefore reversed and the cause remanded for further proceedings.

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

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The guardian ad litem explained that friction between Linda and Brad made him unwilling to recommend joint legal custody at that time. He added that he believed Linda had a better support system in the area and there would be less conflict if one party was the major decision maker.

       All proposed placement schedules tended to equalize placement during the summer. Linda's and Brad's disagreement thus focused on physical placement during the school year.

       The guardian ad litem met with each parent in his office and then visited Linda and Brad once at their respective homes. Samuel was present during the "in-home" interviews.

       It is unclear from the record exactly when this placement schedule went into effect, although it could not have been before early June of 2003.

       The written judgment and order includes no findings of fact specific to placement and provides no explanation of the court's reasoning; thus, we consider only the trial court's oral statement of its decision. Under Wis. Stat. 767.24(5), the court "shall" consider the following factors to the extent they are relevant:
      1. The wishes of the child's parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.
      2. The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.
      3. The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest.
      4. The amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents' custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future.
      5. The child's adjustment to the home, school, religion and community.
      6. The age of the child and the child's developmental and educational needs at different ages.
      7. Whether the mental or physical health of a party, minor child or other person living in a proposed custodial household negatively affects the child's intellectual, physical, or emotional well-being.

        8. The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
      9. The availability of public or private child care services.
      10. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
      11. Whether each party can support the other party's relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party.
      12. Whether there is evidence that a party engaged in abuse, as defined in s. 813.122(l)(a), of the child, as defined in s. 48.02(2).
      13. Whether there is evidence of interspousal battery as described under s. 940.19 or 940.20(lm) or domestic abuse as defined in s. 813.12(l)(am).
      14. Whether either party has or had a significant problem with alcohol or drug abuse.
      15. The reports of appropriate professionals if admitted into evidence.
      16. Such other factors as the court may in each individual case determine to be relevant.

       Because there was no evidence that anyone asked Samuel, who was seven at the time of the divorce, how he felt about the physical placement schedule, the court could not have considered that factor. The guardian ad litem's preliminary report and oral statement supported Brad's testimony that his son was shy and had been receiving speech therapy, two facts which might indicate special developmental needs. However, the court did not make any particular finding that would indicate this relevant factor was considered. There was evidence, in the form of a prior restraining order, that Linda and Brad had a tense relationship during the early months of their separation. But the trial court did not explicitly consider Brad's and Linda's willingness to support each other, and little evidence about whether they were supporting each other's parenting efforts at the time of the divorce appears in the record.


source: Caselaw Access Project

author: DEININGER, P.J.

license: Public Domain

text:
    Kerry Inc. f/k/a Kerry Ingredients, Inc., Plaintiff-Co-Appellant, v. Angus-Young Associates, Inc., and Design Professionals Insurance Company, Defendants-Respondents, Earth Tech Environment & Infrastructure, Inc., James R. Lucht and William H. Moore, Defendants-Appellants, Indian Harbor Insurance Company and Reliance Insurance Company of Illinois, Defendants.
    Court of Appeals

      No. 03-3546.

      Submitted on briefs August 5, 2004.

    Decided February 24, 2005.

    2005 WI App 42
    (Also reported in 694 N.W.2d 407.)

      On behalf of the defendants-appellants, Earth Tech Environment & Infrastructure, Inc., James R. Lucht, and William H. Moore, the cause was submitted on the briefs of Carl A. Sinderbrand and Hugh N. Anderson of Wickwire Gavin, EC., Madison.
    On behalf of the plaintiff-co-appellant, Kerry, Inc., f/k/a Kerry Ingredients, Inc., the cause was submitted on the briefs of Kenneth B. Axe, Ronald J. Kotnik, and Frank C. Sutherland of Lathrop & Clark LLP, Madison.
    On behalf of the defendants-respondents, Angus-Young Associates, Inc., and Design Professionals Insurance Company, the cause was submitted on the brief of Robert J. Kay and Robert A. Mich, Jr., of Kay & Andersen, S.C., Madison.
    Before Deininger, PJ., Dykman and Higginbotham, JJ.

       Petition to review filed.

   DEININGER, P.J.

¶ 1. The circuit court granted a motion for summary judgment and dismissed claims for breach of contract, professional negligence and misrepresentation brought by Kerry, Inc., against an architectural firm, Angus-Young Associates, Inc. The court also dismissed a cross-claim against the architects for contribution or indemnification filed by Earth Tech Environment & Infrastructure, Inc., and two of its employees (collectively, "Rust"). Kerry appeals the judgment dismissing its claims against Angus-Young, and Rust appeals the order that dismissed its cross-claim. Because we conclude that a material factual dispute exists regarding whether Angus-Young fulfilled the requisite standard of professional care in providing architectural services to Kerry, we reverse both the judgment and the order, and we remand to the circuit court for further proceedings on Kerry's and Rust's claims against Angus-Young.

BACKGROUND

¶ 2. Kerry first retained Angus-Young in 1993 to study potential sites for a business facility. One of those sites was an existing building in Beloit that was built in part over the Rock River. With respect to that building, Angus-Young noted that the "structural stability of the 'over the river' building [was] unknown at this time," and it recommended that a structural inspection be made.

¶ 3. Kerry retained a professional engineering firm, Rust, to inspect the building and report on its structural soundness. Rust reported in August 1995 that the 1920's vintage building was "located over the Rock River and supported on concrete piers and caissons." Rust found the building, based on its "visual inspection," to be "in good structural condition," with the exception of several needed minor repairs. As for the "River Level" portion of its inspection, Rust reported that the piers and caissons were "in good structural condition except for two piers and caissons," for which it recommended concrete repairs and patching. Rust concluded, however, that "[a]t this time, the piers and caissons are not considered a significant safety concern." The report was silent regarding whether any inspection had been conducted of the foundation components that were below the water line.

¶ 4. Kerry acquired the building and retained Angus-Young to perform architectural services relating to renovation of the building for Kerry's purposes. The two parties entered into a written contract on December 13,1995, although Angus-Young performed preliminary work and made cost estimates prior to that date. Kerry provided Angus-Young a copy of Rust's report at some point before the formal contract for architectural services was executed in December, the precise date being in dispute. When work began and interior flooring on the first floor was removed, it was discovered that one corner was three and three-quarters inches lower than the rest of the floor. Angus-Young recommended to Kerry that an engineering firm be retained to investigate the cause of the floor drop. Engineers (not Rust) determined that the building rested, below the water line, not on solid concrete piers and caissons, but on timber piles, some of which had deteriorated. Costly and time-consuming repairs were then made to the building foundation before the building renovation could proceed and be completed.

¶ 5. Kerry maintains that it would not have undertaken the renovation project and incurred the additional foundation repair costs had the true condition of the building's foundation been known before the work started. Kerry sued Angus-Young and Rust to recover its additional, unanticipated renovation costs. Kerry alleged that Angus-Young breached its contract, committed professional negligence and made negligent or strict-liability misrepresentations by, among other things, failing to properly review the Rust report and failing to properly determine the renovation project requirements and projected costs. Rust cross-claimed against Angus-Young for contribution and indemnification in the event Rust was determined liable to Kerry for damages.

¶ 6. The circuit court granted Angus-Young's motion for summary judgment against Kerry, concluding that the contract between the parties precluded Angus-Young from incurring any liability deriving from the inadequacy of the Rust report. The court determined that Angus-Young was contractually entitled to rely on the Rust report, which had been independently obtained by Kerry and furnished to Angus-Young. The court subsequently also granted Angus-Young's motion to dismiss Rust's cross-claim, thus terminating the litigation with respect to Angus-Young. Kerry and Rust appeal the dismissal of their respective claims against Angus-Young.

ANALYSIS

¶ 7. We review the granting or denial of motions for summary judgment de novo, applying the same methodology and standards as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 316, 401 N.W.2d 816 (1987). Summary judgment is appropriate where the pleadings and evidentiary submissions show no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Maynard v. Port Publ'ns, Inc., 98 Wis. 2d 555, 558, 297 N.W.2d 500 (1980). This court will reverse a decision granting summary judgment if the trial court incorrectly decided legal issues or if material facts are .in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993). We, like the trial court, may not decide issues of fact but must determine only whether a material factual issue exists. Id. Finally, if there is doubt as to whether a genuine issue of material fact exists, we will resolve those doubts against the party moving for summary judgment. Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).

¶ 8. Typically, we would begin our independent summary judgment analysis with a discussion of the elements of the claims Kerry has alleged against Angus-Young. We would then review the record to determine whether these elements were established or placed in dispute by the parties' submissions. Here, however, setting aside Kerry's misrepresentation claims for the moment, our focus will be much narrower because the dispositive issue is whether the plain language of the Kerry-Angus-Young contract precludes Angus-Young's liability in either tort or contract for failing to recognize the alleged inadequacy of the Rust inspection report. That is, Angus-Young maintains that it had no contractual duty to evaluate the adequacy of the Rust inspection report, and further, even if it had a common-law duty to determine whether the report was adequate for it to proceed with renovation design work, Angus-Young contends that the terms of its contract with Kerry absolved it of that duty. We disagree.

¶ 9. The supreme court explained in A.E. Investment Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 489, 214 N.W.2d 764 (1974), that an "architect has the duty of using the standard of care ordinarily exercised by the members of that profession." Like other professionals, architects generally perform their services pursuant to contracts with their clients. This means that claims against architects for improperly performed work may often sound in either contract or tort, but their common-law duty to exercise the standard of professional care for architects exists independent of any contract, which merely " 'furnishe[s] the occasion' for fulfillment of that duty." Milwaukee Partners v. Collins Eng'rs, Inc., 169 Wis. 2d 355, 362, 485 N.W.2d 274 (Ct. App. 1992). "Thus, unless public-policy considerations against liability intervene, professionals in Wisconsin are liable in tort for economic damages irrespective of whether there is a contractual relationship between the parties." Id. at 363 n.3.

¶ 10. Applied here, these principles mean that Angus-Young cannot claim to have been absolved by its contract from its duty to exercise "due architectural care" in performing services for Kerry — that duty preexisted the parties' contract and attached itself to all of the activities Angus-Young performed in fulfilling its contract with Kerry relating to the renovation projéct. Angus-Young contends, however, that the scope of an architect's services can be limited by the parties' contract, and the parties are free to allocate particular risks and responsibilities relating to a given project between them in any fashion they may agree. Here, according to Angus-Young, evaluation of the adequacy of the Rust report was not within the scope of Angus-Young's services as defined by the parties' contract.

¶ 11. Angus-Young points to several provisions in the contract in support of its position. The following are listed as "optional additional services" under the contract, and, hence, are not within the services Angus-Young was contractually obligated to perform: " [providing planning surveys, site evaluations or comparative studies of prospective sites"; " [providing services to investigate existing conditions or facilities";"[providing services to verify the accuracy of drawings or other information furnished by the Owner"; and "[providing services in connection with the work of... separate consultants retained by the Owner." The contract also specifically required Kerry, not Angus-Young, to furnish "surveys describing physical characteristics," as well as "structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents." Finally, as to any "services, information, surveys and reports" furnished by Kerry under these provisions, Angus-Young was "entitled to rely upon the accuracy and completeness thereof."

¶ 12. Based on these provisions in the contract, Angus-Young maintains that it had no responsibility to assess the adequacy of the Rust structural inspection report, and instead, could accept it as furnished by Kerry and rely on its conclusion that the building's structure and foundation were in good condition. Angus-Young points to Luterbach v. Mochon, Schutte, Hackworthy, Juerisson, Inc., 84 Wis. 2d 1, 267 N.W.2d 13 (1978), as establishing the principle that architects may limit the scope of their services by contract. The plaintiff in Luterbach was injured on a construction site when an excavation caved in. Id. at 3. He sued the project architects, whom he claimed were contractually obligated to provide "general supervision and direction of the work," thus rendering them liable for breaches in worksite safety standards. Id. at 5-6. The supreme court rejected the plaintiffs argument and affirmed the dismissal of his claims based on a specific provision in the owner-architect contract that the architect " 'shall not be responsible for construction means, methods . .. or for safety precautions and programs in connection with the work." Id. at 6.

¶ 13. We reached a similar conclusion in Kaltenbrun v. City of Port Washington, 156 Wis. 2d 634, 457 N.W.2d 527 (Ct. App. 1990), where we absolved an architect of any responsibility for an unsafe access road serving a construction site. We followed the Luterbach rationale in concluding that the architect bore no contractual responsibility or common-law duty to ensure worksite safety. Kaltenbrun, 156 Wis. 2d at 644. We rejected the plaintiffs attempt to impose such a duty under the standard of care for architects recognized in A.E. Investment, which requires architects to undertake their duties with "an awareness and a responsibility to the public welfare." A.E. Investment, 62 Wis. 2d at 488. The plaintiff in Kaltenbrun relied on that language to assert that architects must submit designs that include safety features for adjacent areas. Kaltenbrun, 156 Wis. 2d at 645. We distinguished A.E. Investment, however, by pointing out that the defect there was "in the structure itself," not in an area adjacent to it. Kalten-brun, 156 Wis. 2d at 645. We concluded that, "[ajbsent a greater contractual assumption of duty, the effect of Luterbach and A.E. Investment is to limit an architect's common law liability to instances of unsafe or defective design of the structure itself." Id.

¶ 14. The distinction we recognized in Kaltenbrun works against Angus-Young in this case. Moreover, Kerry's claim, unlike those in Luterbach and Kaltenbrun, does not involve an alleged duty to oversee construction methods or worksite safety. The defect that allegedly caused Kerry to suffer a loss involved the building under renovation itself, not an adjacent area. Kerry does not claim that Angus-Young was contractually obligated to perform its own structural inspection of the building foundation, but that, in the exercise of due architectural care, it should have recognized the inadequacy of the Rust report to serve as a basis for its preparation of plans for the renovation of the building. Because the report says nothing about the building's foundation below the water, line and is silent with respect to whether the underwater features were inspected, Kerry claims that Angus-Young should have called for a more extensive inspection before it performed its contracted service of planning the renovation work to be done on the building.

¶ 15. We agree with Kerry that the parties' contract does not preclude such a claim. The "Project" identified in the parties' contract includes the "complete interior renovation" of the building in question. The "scope of architect's basic services" set forth in the contract includes, among others, the following: "normal structural, mechanical and electrical engineering services"; reviewing Kerry's "program" in order to "ascertain the requirements of the Project"; reviewing with Kerry "alternative approaches to design and construction of the Project"; preparing "drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate"; and preparing drawings and specifications "setting forth in detail the requirements for the construction of the Project." The contract permitted Angus-Young to retain consultants to assist it in performing its duties, and it obligated Kerry to "furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Architect."

¶ 16. We are satisfied that the foregoing provisions required Angus-Young to devise and furnish Kerry with plans and specifications that would result in Kerry obtaining a safe and suitable building to house its business. Kerry's claim against Angus-Young is premised on the allegedly "unsafe or defective design of the structure itself," see Kaltenbrun, 156 Wis. 2d at 645, at least as originally proposed by Angus-Young in reliance on the Rust report.

¶ 17. We also conclude that Kerry submitted sufficient evidence in support of its claim to survive summary judgment. Kerry's expert, an architect, opined in an affidavit that Angus-Young "failed to comply with the applicable standard of care of a reasonably prudent architect. . . [b]y failing to reasonably determine the overall scope of work necessary for renovation of the [building]" during both Angus-Young's preliminary work and under the December 13, 1995 contract. Specifically, the Kerry expert concluded that Angus-Young failed: (1) to recognize that "significant renovations would be necessary to the foundation, at a substantial cost"; (2) to "determine whether the building would be safe for occupancy" and "meet all applicable building codes"; and (3) to "determine that the Rust report. . . was inadequate to determine long-term building safety, by failing to request more foundation information, or at [a] minimum by failing to bring such deficiencies to the owner's attention." Finally, this architect reviewed the Kerry-Angus-Young contract, and opined that the term "normal structural, mechanical and electrical engineering services" would encompass an obligation on Angus-Young's part to not only review the Rust report and advise Kerry as to its adequacy, but further, given the report's content or lack thereof, to recommend a "further structural investigation."

¶ 18. We are thus satisfied that the record on summary judgment places in dispute whether Angus-Young failed to meet the requisite standard of professional care in discharging its responsibilities under its contract with Kerry. Nothing in the contract relieves Angus-Young of its common-law obligation to render its services to that standard, and a jury issue is presented as to whether it did or did not do so. This is not a case like Luterbach or Kaltenbrun where a plaintiff is seeking to hold an architect liable for losses wholly outside the scope of the architect's contracted services. Accordingly, the circuit court erred in dismissing Kerry's breach of contract and professional negligence claims against Angus-Young.

¶ 19. Kerry also contends that its claims for negligent and strict-liability misrepresentation should survive summary judgment, although its argument on the point is terse, as is Angus-Young's response. Angus-Young argues only that these claims should be dismissed because they are based solely on "Angus-Young's alleged failure to advise Kerry of the deficiencies in the Rust report," which it claims to have had "no contractual duty to analyze or verify." Angus-Young does not explain why, if Kerry's breach of contract and professional negligence claims survive summary judgment, which we conclude they do, Kerry's misrepresentation claims should nonetheless be dismissed.

¶ 20. In order to prevail on a misrepresentation claim, Kerry must show that Angus-Young "made a representation of fact," that was "untrue," which Kerry believed to be true and relied on. See Wis JI — Civil 2402 and 2403. In addition, Kerry must establish that Angus-Young was either negligent in making the representation, or made it under circumstances in which Angus-Young knew or ought to have known the truth or untruth of the statement and stood to make a financial gain if Kerry entered into a transaction. Id. The Rust inspection report allegedly contained an untrue representation (i.e., that the building foundation was structurally sound), and Kerry maintains that Angus-Young's silence with respect to the adequacy of the Rust report constituted a separate misrepresentation on its part that the report was adequate for the purpose of preparing plans and specifications for the building renovation. Silence may be actionable as a negligent or strict-liability misrepresentation if Angus-Young had a "duty to speak," e.g., "where the circumstances would call for a response in order that the parties may be on equal footing; or where there is a relationship of trust or confidence between the parties." Wis JI — Civil 2402 (footnotes omitted).

¶ 21. Thus, at bottom, the key question for the fact finder with respect to the misrepresentation claims against Angus-Young appears to be whether Angus-Young had a "duty to speak" with respect to the adequacy of the Rust report. That question, in turn, seemingly involves a determination of whether Angus-Young's failure to question the adequacy of the report fell below "the standard of care ordinarily exercised by the members of [the architectural] profession." A.E. Investment, 62 Wis. 2d at 489. If Angus-Young's failure to question the adequacy of the Rust report before preparing plans for the renovation meets that standard, then it would seem to have had no "duty to speak," and neither could it apparently then be said that Angus-Young "ought to have known" of the report's inadequacy or that it negligently remained silent on the subject. On the other hand, if the failure to question the adequacy of the Rust report represents a failure to exercise "due architectural care" under all of the facts and circumstances present, Angus-Young's silence might well also be actionable under Kerry's alternative misrepresentation theories.

¶ 22. We question whether Kerry's misrepresentation claims add anything to its ability to recover the damages it seeks from Angus-Young, and we have some concern that these claims serve only to divert attention from what appears to be the dispositive inquiry— whether Angus-Young breached the standard of professional care. Nonetheless, because there is a factual dispute material to the resolution of these claims, and because Angus-Young has provided no rationale for dismissing the claims as a matter of law, we conclude that Kerry's misrepresentation claims should also survive summary judgment and be subject to further proceedings in the circuit court.

¶ 23. Finally, we address the dismissal of Rust's cross-claim. Although the circuit court did not articulate its rationale for dismissing Rust's cross-claim against Angus-Young for contribution or indemnification, it appears that the court did so because it had previously concluded that Angus-Young could not be found liable to Kerry, and thus, Angus-Young also could not be required to contribute to or indemnify Rust for any damages that Rust might be ordered to pay to Kerry. Angus-Young's primary argument on appeal is precisely that: "The fact that Angus-Young is not liable to Kerry negates any possibility of apportioning fault between Angus-Young and ... Rust... for Kerry's damages." Because we have reversed the summary judgment in Angus-Young's favor against Kerry, the primary rationale Angus-Young advances for dismissing Rust's cross-claim also fails.

¶ 24. Angus-Young also asserts that Rust failed to allege "an independent viable claim of negligence against Angus-Young." We note that Rust's cross-claim was dismissed, not on summary judgment, but on Angus-Young's motion for "judgment on the pleadings." We thus examine the allegations of Rust's cross-claim. Rust alleges that Angus-Young "improperly relied upon the Rust letter report, used the Rust letter report for a purpose for which it was not intended, and was otherwise negligent in the performance of its services." Rust then asserts that if Rust is "adjudged liable to Kerry, then [Angus-Young is] or may be liable to Kerry for all or part of the claim asserted against... Rust... in the action." We are satisfied that Rust has properly pled a claim for contribution or indemnification against Angus-Young, and the circuit court erred in dismissing it.

CONCLUSION

¶ 25. For the reasons discussed above, we reverse the appealed judgment and order and remand to the circuit court for further proceedings on Kerry's and Rust's claims against Angus-Young.

By the Court. — Judgment and order reversed and cause remanded with directions.

       The parties refer to Earth Tech Environment & Infrastructure, Inc., and its employees, James Lucht and William Moore, as the "Rust defendants," apparently because, at the time that it performed the structural inspection at issue in this case, Earth Tech was known as Rust Environment & Infrastructure. We adopt the parties' reference but shorten it to simply "Rust." Three insurance companies are also named as defendants in the caption, but none make claims or arguments apart from their insureds, and we will not refer again to the insurers in this opinion.

       Kerry settled its claim against another defendant, the foundation contractor, who was then dismissed as a party to the litigation.

       The parties provided us with supplemental argument on the applicability to the present facts of the supreme court's holding in Baumeister v. Automated Products, Inc., 2004 WI 148, 277 Wis. 2d 21, 690 N.W.2d 1, which was decided after this appeal was briefed and submitted. We agree with Kerry that the court's conclusion in Baumeister that the architect in that case could not be held liable for injuries sustained by construction workers during the erection of wood trusses is of little relevance to this appeal. The court noted, as it had in Luterbach, that the parties' contract absolved the architect of any responsibility for " 'construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work.'" Baumeister, 277 Wis. 2d 21, ¶ 21. In addition, the court noted the plaintiffs failure to submit expert evidence tending to establish that the architect in Baumeister had breached any professional duties or the requisite standard of care, id., ¶ 19, an infirmity that, as we have described, the present record does not share.


author: VERGERONT, J.

text:
    In re the Commitment of Charles W. Mark: State of Wisconsin, Petitioner-Respondent, v. Charles W. Mark, Respondent-Appellant.

    Court of Appeals

      No. 03-2068.

      Oral argument November 29, 2004.

    Decided March 3, 2005.

    2005 WI App 62
    (Also reported in 701 N.W.2d 598.)

      On behalf of the respondent-appellant, the cause was orally argued by and submitted on the briefs of Glenn L. Cushing, assistant state public defender, of Madison.
    On behalf of the petitioner-respondent,the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and brief and oral argument by Sally L. Wellman, assistant attorney general.
    Before Vergeront, Lundsten and Higginbotham, JJ.

       Petition to review granted 7-28-2005.

   VERGERONT, J.

¶ 1. Charles W. Mark appeals a judgment following a jury trial finding him to be a sexually violent person under Wis. Stat. ch. 980 and ordering his commitment. Mark contends the judgment and order should be reversed and the matter remanded for a new trial on two grounds.

¶ 2. First, Mark asserts that statements to his parole agent that were used against him at trial were compelled and therefore violated the constitutional rights accorded him under Wis. Stat. § 980.05(1m), specifically, the Fifth Amendment right criminal defendants have not to be compelled to testify against themselves and a due process right not to have his involuntary statements admitted. We conclude that certain of the statements — those relating to the woman living next door in his hotel — are incriminating under the definition we employed in State v. Zanelli (Zanelli II), 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998). We therefore remand to the circuit court for a determination whether these statements were compelled, and, if so, whether their admission was harmless error. As for the remaining statements, we conclude they are not incriminating under Zanelli II and therefore the Fifth Amendment, as existing precedent has applied it under § 980.05(lm), does not bar their admission in a trial under ch. 980. We also conclude that Mark's argument on the due process clause of the Fourteenth Amendment does not provide a basis for excluding statements that are admissible under our Fifth Amendment analysis.

¶ 3. Second, Mark argues that the circuit court erroneously exercised its discretion in excluding evidence concerning the rules of his probation. We conclude, as a matter of law, that this evidence is not relevant to the issue whether Mark was a sexually violent person as defined in Wis. Stat. § 980.01(7). The court therefore did not err in excluding this evidence.

¶ 4. Accordingly, we affirm in part and remand to the circuit court for further proceedings consistent with this opinion.

BACKGROUND

¶ 5. Mark was convicted in 1994 on three charges of sexual assault of a child contrary to Wis. Stat. § 948.02(1). He was sentenced to eight years in prison on one charge and sentence was withheld on the other two, with fifteen years of probation ordered on each of these two, consecutive to the prison term and concurrent to each other. Mark was released on parole in May 1999, but his parole was revoked in June 2000, and he was returned to prison to complete his sentence. Shortly before his release date, the State initiated this petition alleging that Mark was a sexually violent person under Wis. Stat. § 980.01(07).

¶ 6. At the trial the State introduced statements made by Mark to his parole agent while he was on parole. Two were written on a form and signed by Mark. At the top of each is the following paragraph preceded by a box with an "X" in it and followed by Mark's initials:

PROBATIONER/PAROLEE/OFFENDER I have been advised that I must account in a truthful and accurate manner for my whereabouts and activities, and that failure to do so is a violation for which I could be revoked. I have also been advised that none of this information can be used against me in criminal proceedings.

The first of these written statements, dated September 8, 1999, described the contact Mark had with a woman at his church, which, he acknowledged he had not told the truth about because he knew his agent would disapprove. He stated that he had talked to this woman on her porch and seen her fold her underclothes and breast feed her baby, and he imagined her naked. This was a violation of the rule of Mark's supervision on parole that he not enter into a relationship with a woman without prior approval. Mark's parole was not revoked as a result of this incident, but he was given a warning and the rules of his supervision were modified.

¶ 7. The second written statement begins "I screwed up big" and describes an incident at his residential hotel in which he walked into the room of the woman next door, after getting no response to his knock. He then knocked on her bathroom door, which was closed, and heard her say "I'll be out in a minute." When he heard bowel movements, he started pushing on the door to get in because he wanted to see her naked. She pushed from the inside to keep the door closed and yelled "get out of here" about three times. He pushed on the door for five to ten minutes but did not succeed in getting in and he left. Mark stated that he reported this incident to his agent because the woman threatened to call the police.

¶ 8. The State also introduced records of the parole agent relating oral statements made to him by Mark. One was a log kept by the agent noting that about two weeks after Mark signed the written statement on the bathroom incident, he admitted that his motivation was to have sex with the woman. Mark's parole was revoked after this incident, but he was not charged with any crime based on it.

¶ 9. In a second oral statement, contained in a Violation Investigation Report dated February 18, 2000, the officer wrote that Mark had denied and then admitted certain sexual activity with his stepson, one of the victims of the crimes for which Mark had been convicted.

¶ 10. Mark's current probation agent testified at the trial and read Mark's statements. The two psychologists called by the State testified that they considered the statements, particularly the bathroom incident, in reaching their conclusions that Mark was a pedophile and there was a substantial probability he would reof-fend. In his closing argument, the prosecutor referred to Mark's statements and pointed out the critical role the bathroom incident played in the State's experts' opinions.

¶ 11. At the time of the trial, Mark was beginning to serve the concurrent fifteen-year terms of probation. Mark wanted to introduce the fact of his probation as well as the rules of his supervision at trial. In response to the State's motion in limine, the court ruled that the evidence was not relevant, although it did allow Mark to establish that he would be on probation for fifteen years.

DISCUSSION

I. Admissibility of Mark's Statements

¶ 12. Mark contends on appeal that the admission of his statements violates the rights accorded him under Wis. Stat. § 980.05(lm), which provides:

(lm) At the trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person.

According to Mark, the statements were incriminating and compelled and, thus, both the Fifth Amendment and the due process clause of the Fourteenth Amendment would have prohibited the State from introducing statements against Mark in a criminal proceeding.

A. Waiver

¶ 13. The State first responds that Mark has waived the right to raise this issue on appeal because his counsel did not object to the admission of these statements before or at trial. Although we do not generally decide issues that are raised for the first time on appeal, we have the authority to do so. Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980) (superseded on other grounds by Wis. Stat. § 895.52). We choose to address Mark's challenge to the admission of his statements because it raises issues significant to ch. 980 proceedings and the parties have fully briefed and argued the issues on appeal.

B. Fifth Amendment

¶ 14. By virtue of Wis. Stat. § 980.05(lm), Mark contends, he has the same right under the Fifth Amendment that a criminal defendant has not to be compelled to testify against himself. The Fifth Amendment case law he relies on establishes the principle that if probationers are required to choose between answers that will incriminate them in pending or subsequent criminal prosecutions and loss of their conditional liberty as a price for exercising their right to remain silent, the statements are compelled. Minnesota v. Murphy, 465 U.S. 420, 435 (1984); State v. Evans, 77 Wis. 2d 225, 232-35, 252 N.W.2d 664 (1977). Such statements are inadmissible for any evidentiary use in criminal proceedings. State v. Thompson, 142 Wis. 2d 821, 833-34, 419 N.W.2d 564 (Ct. App. 1987). Mark relies on the definition of incriminating in Rhode Island v. Innis, 446 U.S. 291, 301 n.5 (1980): "any response - whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial."

¶ 15. The State responds that, because ch. 980 is a civil not a criminal proceeding and the Fifth Amendment by its terms applies only to criminal proceedings, neither Wis. Stat. § 980.05(lm) nor the Fifth Amendment requires suppression of Mark's statements in this ch. 980 trial. What he is entitled to, the State asserts, is not to have the statements used against him in a criminal trial, and that has not happened.

¶ 16. The parties' arguments depend in large part on their views of three cases that have considered whether various aspects of Fifth Amendment law apply in a ch. 980 trial by virtue of Wis. Stat. § 980.05(1m): State v. Zanelli (Zanelli I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997); Zanelli II, 223 Wis. 2d 545; and State v. Lombard (Lombard I), 2004 WI 95, 273 Wis. 2d 538, 684 N.W.2d 103. Because of the importance of these cases to a resolution of this appeal, we discuss each before addressing the parties' arguments in more detail.

¶ 17. In Zanelli I we considered Zanelli's contentions that under Wis. Stat. § 980.05(1m) he had a right to remain silent in a ch. 980 proceeding, and this right was violated by the State's introduction at trial of testimony that he had refused to participate in a prepetition psychological evaluation and by the prosecutor's comment in closing argument on this refusal. 212 Wis. 2d at 369. We first concluded that § 980.05(1m) did make applicable to Zanelli the Fifth Amendment right to remain silent that a defendant would have in a criminal proceeding. Id. at 370-71. We next examined the right a criminal defendant would have at trial with respect to the right to remain silent. Id. at 371. A criminal defendant would have, we explained, the right to remain silent prior to an arrest or custodial interrogation whether or not the defendant had received a Miranda warning; that right would be violated if the prosecution commented on a defendant's prearrest silence unless the defendant chose to testify. Id. at 371-72 (citations omitted). Because of § 980.05(lm), we concluded that Zanelli had this same right, which was violated by the witnesses' testimony on Zanelli's silence and the prosecution's comment on it. Id. at 372. We therefore reversed the judgment that Zanelli was a sexually violent person and remanded for a new trial. Id.

¶ 18. In Zanelli II we considered Zanelli's contention that the admission at his second trial of his statements to his probation officers violated the Fifth Amendment made applicable to him by Wis. Stat. § 980.05(lm). 223 Wis. 2d at 567. The Fifth Amendment case law, we explained, established that if probationers are required to choose between giving answers that will incriminate them in pending or subsequent criminal prosecution and losing their conditional liberty as a price for exercising their right to remain silent, the State may not use the answers for any evidentiary purpose in a criminal prosecution. Id. at 568-69 (citing Murphy, 465 U.S. at 435, and Thompson, 142 Wis. 2d at 832). After noting that Zanelli had not set forth facts to establish that he was compelled to choose between giving answers that would incriminate him and risking revocation of his constitutional liberty, we stated:

A review of the record reveals that [probation officers] testified regarding the 1977 and 1991-92 matters for which Zanelli had already been convicted, so such statements could not subject Zanelli to future criminal prosecution. Further, any statements about Zanelli's background, including his employment and family, could not, by themselves, incriminate Zanelli in a subsequent criminal prosecution. The fact that such statements can he used in a ch. 980, Stats., case does not mean that the statements could incriminate him in a pending or subsequent criminal prosecution as ch. 980 is a civil commitment proceeding, not a criminal proceeding. See State v. Carpenter, 197 Wis. 2d 252, 270-72, 541 N.W.2d 105, 112-13 (1995). Accordingly, the statements were admissible.

Id. at 568.

¶ 19. In Lombard I the issue concerned the admissibility of the respondent's statements to the State's psychologist during an interview to determine if a petition under ch. 980 should be filed. Lombard contended that by virtue of Wis. Stat. § 980.05(lm), he was entitled to a Miranda warning before the interview, just as a criminal defendant in custody would be before an interview by a State psychologist. 273 Wis. 2d 538, ¶¶ 20-23. The court concluded that § 980.05(1m) plainly made the constitutional rights described applicable only "at the trial," id., ¶ 37, and therefore the statute did not afford Lombard any right during the prepetition phase. The court went on to explain that this ruling was consistent with both Zanelli I and Zanelli II. Because Zanelli I addressed only the right to remain silent, the court stated, it did not support the right to Miranda warnings. Id., ¶ 40. As for Zanelli II, after summarizing our conclusion there — that Zanelli's statements to his probation officers were properly admitted because they concerned crimes for which he had already been convicted and thus he was not subject to future criminal prosecution — the court said:

We conclude that the reasoning in Zanelli II, concerning crimes for which Zanelli had already been convicted, is directly applicable to this case. Here, Lombard was already convicted for the underlying sexual assault offenses that led to his ch. 980 commitment as a sexually violent person. Thus, any statements Lombard made to Jurek regarding those assaults could not be used against him in future prosecutions. We agree with the court of appeals in this case that "[t]he purpose of the examiner's interview was to evaluate Lombard for the purposes of a potential 'civil commitment proceeding, not a criminal proceeding,' and the examiner was not required to comply with Miranda's dictates.". .. (citation omitted).

Id., ¶ 42.

¶ 20. Mark's position is that Zanelli II was wrongly decided because we employed there a narrow definition of incriminating that is at odds with Innis, 446 U.S. at 301 n.5. However, the issue at bottom is not the correct application of the Fifth Amendment but the correct construction and application of Wis. Stat. § 980.05(1m), an issue of state law. We are therefore bound to follow Zanelli II, and this is especially the case after the supreme court quoted it with approval in Lombard I. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997).

¶ 21. The State offers two readings of Lombard I, both supporting its position that Mark's statements are admissible. First, the State focuses on the court's emphasis that a ch. 980 proceeding is a civil proceeding, not a criminal proceeding, and argues that there are therefore no Fifth Amendment rights in a ch. 980 proceeding. This was one of the arguments the State made in Lombard I, 273 Wis. 2d 538, ¶¶ 24-25, but it is not the one the court adopted. Rather, the court adopted the State's other argument — that Wis. Stat. § 980.05(lm) affords respondents the constitutional rights available to a defendant in a criminal proceeding only "at the trial." Id., ¶¶ 2, 37. This construction of the statute necessarily recognizes that, even though a ch. 980 proceeding is a civil proceeding, at the trial the respondent has the constitutional rights available to a defendant in a criminal proceeding. This is not an impermissible expansion of the substance of the constitutional provisions themselves, as the State suggested at oral argument. Rather, it is a recognition that the legislature intended to accord to ch. 980 respondents the constitutional protections that apply at trial in criminal proceedings. We understand the Lombard I court's emphasis in ¶ 42 on the civil nature of ch. 980 proceedings to be the court's explanation why use of the challenged statement in a ch. 980 proceeding does not constitute use in a criminal proceeding. We do not understand it to be a holding that Fifth Amendment rights are excluded entirely from the constitutional rights the legislature has chosen, through the enactment of § 980.05(lm), to accord respondents at trial.

¶ 22. The second reading of Lombard I offered by the State focuses on the court's construction of "[a]t the trial" in Wis. Stat. § 980.05(lm). Because Mark's statements were made prepetition, the State asserts that he is not protected from their use at trial, even if the statements are incriminating and were compelled. While this is a logical reading of paragraph 37 in Lombard I, we cannot reconcile it with the court's discussion of Zanelli II in paragraphs 41-42 of Lombard I. As we have already noted, the court there approves of our analysis in Zanelli II and applies it to Lombard: the premise of that analysis is that a ch. 980 respondent is protected from the use of a compelled statement in a ch. 980 trial if that statement could subject him to a future criminal prosecution. In essence, the State reads Lombard I to overrule Zanelli I and Zanelli II. We cannot adopt that reading in view of the court's express approval of both.

¶ 23. We conclude the better reading of Lombard I is that it holds a ch. 980 respondent is not entitled to prepetition Miranda warnings and leaves intact our rulings in Zanelli I and Zanelli II. Because Mark's appeal concerns allegedly compelled statements, not a respondent's silence (Zanelli I) and not a challenge based on lack of Miranda warnings CLombard I), the applicable case is Zanelli II.

¶ 24. In Zanelli II, in applying the Fifth Amendment to that respondent, we analyzed the challenged statements to determine if they were incriminating. The definition of incriminating we employed was that a statement is incriminating if it could incriminate a respondent in a subsequent criminal prosecution. 223 Wis. 2d at 568. Although we had no difficulty in applying this definition in Zanelli II, when now faced with a different set of facts, we see at least two problems with the definition. First, it requires us to decide whether a statement is or is not admissible in one proceeding (under ch. 980) based on whether it would be incriminating in another proceeding — a future, hypothetical criminal proceeding. We cannot readily articulate a rationale for excluding a statement in a ch. 980 trial because it would be incriminating in a future, hypothetical criminal proceeding. The second and related problem is that it may not always be apparent what would be incriminating in a future, hypothetical criminal proceeding. Although we conclude we are bound by Zanelli II, we believe that courts and litigants would benefit from a supreme court review of our analysis in that case, as well as a clarification of the related paragraphs in Lombard I. See ¶ 22 above.

1. Incriminating

¶ 25. Following Zanelli II, we now consider whether the challenged statements would subject Mark to a future criminal proceeding.

¶ 26. Addressing first Mark's oral admission to his parole officer about sexual activity with his stepson, we understand this conduct to relate to the offenses for which Mark was charged and convicted. Neither in his briefs nor at oral argument did Mark explain why this statement might subject Mark to a future criminal proceeding. We therefore conclude this statement is not incriminating under Zanelli II.

¶ 27. Regarding the written statement about the woman from Mark's church, Mark's counsel acknowledged at oral argument that it was difficult to argue this statement would subject Mark to future criminal prosecution. We agree. We see no readily apparently criminal law that Mark might have violated in his contacts with this woman as described in his statement, and we decline to develop this argument further on Mark's behalf. We therefore conclude this statement is not incriminating under Zanelli II.

¶ 28. We reach a different conclusion regarding Mark's statements about the woman who lived at his hotel. Mark's position is that these statements provide a basis for a charge of attempted sexual assault. That is most likely true, given Mark's oral admission that his motivation was to have sex. At a minimum, the written statement could subject Mark to prosecution for disorderly conduct under Wis. Stat. § 947.01. We therefore conclude that this written statement and the later oral admission are incriminating under the definition used in Zanelli II, and we proceed to decide whether they were also compelled.

2. Compelled

¶ 29. Mark's position is that the following evidence establishes that his statements to his parole agent about the woman who lived at his hotel were compelled: (1) according to the "Violation/Revocation Summary," he was placed in custody on April 25, 2000, made the written statement on April 28, 2000, and the oral statement thereafter; (2) the written statement form advised him that his probation could be revoked if he did not make a truthful account of his activities; (3) according to Mark's current probation agent's testimony, the statements were made to the officer investigating allegations that Mark entered the woman's residence at the hotel without permission, attempted to force his way into her bathroom without permission, and wrote her a note that he wanted to see her naked.

¶ 30. The State disagrees and, while noting that the record on this point is sparse, argues that it shows the statement was voluntary. The State relies on the Violation/Revocation Summary, which states that Mark "reported to the agent that he 'screwed up big.' " This shows, in the State's view, that Mark initiated the contact and the subsequent confession.

¶ 31. We conclude that the present record permits competing reasonable inferences on whether Mark's statements on the incident with the woman who lived at his hotel were compelled within the meaning of Murphy, Evans, and Thompson. Because it is not our role to find facts, and because the record in any event is not well developed on this issue, we conclude that a remand is necessary. A remand will permit the circuit court to take evidence on the issue of the voluntariness of these statements and to make findings of fact based on that evidence. Because a harmless error analysis applies to compelled confessions, Arizona v. Fulminante, 499 U.S. 279, 295 (1991), the circuit court will also need to undertake that analysis if it determines that any statement on the incident with the woman who lived at Mark's hotel was compelled.

C. Fourteenth Amendment Due Process Clause

¶ 32. Mark contends that, even if some of his statements are not incriminating for purposes of the Fifth Amendment as we applied it in Zanelli II, they are inadmissible under a distinct protection afforded a criminal defendant by the due process clause of the Fourteenth Amendment. The due process clause, he argues, prevents the use of any involuntary statement against a criminal defendant and, thus, he has that right under Wis. Stat. § 980.05(lm) regardless of how we apply the Fifth Amendment. The cases he relies on are Mincey v. Arizona, 437 U.S. 385, 398 (1978); Thompson, 142 Wis. 2d at 833; and State v. Hoppe, 2003 WI 43, ¶ 36, 261 Wis. 2d 294, 661 N.W.2d 407.

¶ 33. We conclude the case law does not support Mark's position that the due process clause affords criminal defendants a protection against use of his or her involuntary statements in a criminal proceeding that is not afforded by the Fifth Amendment. Instead, with respect to the use of a defendant's involuntary statements in criminal cases, the rights conferred by the due process clause and the Fifth Amendment are coextensive.

¶ 34. In Malloy v. Hogan, 378 U.S. 1, 3, 6, 10 (1964), the Supreme Court held that that the Fourteenth Amendment guaranteed a defendant in a state proceeding the same protection of the Fifth Amendment's privilege against compelled self-incrimination that applied in a federal proceeding. Earlier, it had been unsettled whether that was the case, and the prohibition against a state's use of coerced confessions had been articulated as a requirement of the due process clause of the Fourteenth Amendment. Id. at 4-8. See, e.g., Rogers v. Richmond, 365 U.S. 534, 541 (1961). However, the Court in Malloy made clear that the proper inquiry when a confession was challenged in state court as involuntary was the same as the inquiry required by the Fifth Amendment: was the person compelled to incriminate himself or herself. 378 U.S. at 7.

¶ 35. The cases on which Mark relies do not suggest otherwise. The language that Mark quotes from Mincey, 437 U.S. at 398—"any criminal trial use against a defendant of his involuntary statement is a denial of due process 'even though there is ample evidence aside from the confession to support the conviction'" — is the expression of the Court's view at that time that a coerced confession was not subject to a harmless error analysis.

¶ 36. The language Mark cites from Thompson is our statement that the defendant's "fifth amendment privilege and his fourteenth amendment right to due process prevented the state from making any eviden-tiary use whatever in these criminal proceedings of his answers to [the] questions." 142 Wis. 2d at 833. This summarizes our conclusion that Murphy, Mincey, and New Jersey v. Potash, 440 U.S. 450, 459 (1979), prevented the use of the probationer's compelled statement not only for the State's case-in-chief but also for impeachment or rebuttal. Thompson, 142 Wis. 2d at 830-33. See ¶ 14 above.

¶ 37. Finally, Mark refers to Hoppe, where the court states: "If Hoppe's statements were involuntary, the admission of the statements would violate his due process right under the Fourteenth Amendment of the U.S. Constitution and Article I, Section 8 of the Wisconsin Constitution. Rogers v. Richmond, 365 U.S. 534, 540 (1961)." 261 Wis. 2d at 309. As we have noted above in paragraph 34, Rogers was decided before the Supreme Court in Malloy established that the Fifth Amendment privilege against self-incrimination applied in state proceedings because of the due process clause of the Fourteenth Amendment.

¶ 38. In short, none of the cases Mark cites, nor any we have been able to locate, support his position that the analysis under the due process clause of the Fourteenth Amendment is different than under the Fifth Amendment when a criminal defendant challenges the State's use of his or her compelled statement. Accordingly, we conclude that Mark's argument on the due process clause does not provide a basis for excluding statements that are admissible under our Fifth Amendment analysis.

I. Admissibility of Probation Rules

¶ 39. The purpose of a trial under Wis. Stat. § 980.05 is to determine if the "subject of a petition under s. 980.02 is a sexually violent person ...Section 980.05(1). A "sexually violent" person means:

a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in acts of sexual violence.

Wis. Stat. § 980.01(7). A "mental disorder" is defined as: "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." Subsection (2).

¶ 40. Mark submitted as an offer of proof the rules that he is or would be subject to during his two concurrent fifteen-year terms of probation. The rules include: reporting to his agent as required, completing sex-offender treatment, no contact with anyone under eighteen unless supervised by his agent, restricted hours away from his residence, and the prior approval of his agent for where and with whom he lives, any dating relationship with a woman, and frequenting places where there are children. The circuit court concluded that, as a matter of law, these rules were not relevant to whether Mark was a sexually violent person because the statute defined that term without reference to levels of supervision; the court acknowledged that the rules would become relevant if and when the question whether to order supervised release was before the court.

¶ 41. Mark contends the court's ruling was an erroneous exercise of discretion because the probation rules are relevant to his future dangerousness, which is part of the definition of a sexually violent person under Wis. Stat. § 980.01(7).

¶ 42. In most instances, the question of relevancy calls for the exercise of the circuit court's discretion, and we review such decisions under a deferential standard. State v. Richard G.B., 2003 WI App 13, ¶ 7, 259 Wis. 2d 730, 656 N.W.2d 469. However, the decision challenged here is not based on the court's assessment of relevancy given the issues of fact and law in this particular case, but on the court's construction of Wis. Stat. § 980.01(7) and related provisions. Whether the court's construction is correct presents a question of law, which we review de novo. Id.

¶ 43. When construing a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation, but as part of a whole, in relation to the language of surrounding or closely related statutes, and reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If, employing these principles, statutory language is unambiguous — that is, there is only one reasonable meaning — then we apply this plain meaning. Id., ¶ 46.

¶ 44. There are two recent cases relevant to our analysis of this issue, although neither fully resolves it: State v. Lombard (Lombard II), 2004 WI App 52, 271 Wis. 2d 529, 678 N.W.2d 338, and State v. Thiel, 2004 WI App 140, 275 Wis. 2d 421, 685 N.W.2d 890. In Lombard II the issue was whether the court erred in refusing to answer a jury's question: if Lombard were determined not to still be a sexually violent person and were discharged, would he be supervised or not? 271 Wis. 2d 529, ¶ 6. (Lombard had already been adjudicated a sexually violent person and the trial was on his petition for discharge. Id., ¶ 2.). Instead of answering the jury's question, the court instructed the jury not to be concerned with what would happen as a result of its answer to the verdict question. Id., ¶ 7. Defense counsel argued that the court should have referred to the evidence that Lombard would be on a combination of parole and probation for forty years because of his criminal convictions. Id. We concluded the court acted reasonably in deciding that evidence of whether Lombard would be supervised as a result of his convictions was not relevant to the question the jury had to answer — whether Lombard was still a sexually violent person.

The answer to that question, as the jury was instructed, depended upon whether Lombard had a mental disorder that created a substantial probability he would engage in future acts of sexual violence. The jury was not asked to decide whether there were conditions that would make Lombard less dangerous if he were discharged.

Id., ¶ 16.

¶ 45. Arguably, Lombard II is distinguishable because there counsel acknowledged there was no evidence of what the rules of supervision would be. In addition, because we addressed the issue as an exercise of the court's discretion in answering a jury question, we did not answer the question whether, as a matter of law, evidence of future parole and probation was relevant.

¶ 46. In Thiel the issue was whether the recommendation of an independent examiner that Thiel be granted supervised release from a ch. 980 commitment was sufficient to establish the probable cause necessary to warrant a full evidentiary hearing on whether he was still a sexually violent person. 275 Wis. 2d 421, ¶ 13. See Wis. Stat. § 980.09(2). Based on our construction of Wis. Stat. §§ 980.01(7) and 980.09(2)(a), we concluded it was not sufficient:

By the plain language of the statute, the question at the probable cause hearing is not whether the individual is substantially probable to engage in acts of sexual violence if placed on supervised release or even if discharged from commitment; the statute draws no such distinction. Rather, the question at the probable cause stage is simply whether it is substantially probable that the person will engage in acts of sexual violence without regard to any specific restrictions, supervision or time frame. It is a black-and-white determination — it is either substantially probable that the person will engage in acts of sexual violence or it is not.

Id., ¶ 17. We added that supervision restrictions become relevant if there is a determination of probable cause in the committed person's favor and the State then proves at the evidentiary hearing that he or she is still a sexually violent person. Id., ¶¶ 19, 20. In that case the court may consider, "using the criterion specified in s. 980.08(4)(b) [governing petitions for supervised release], whether to modify the person's existing commitment order by authorizing supervised release." Section 980.09(2)(c).

¶ 47. Consistent with our analysis in Thiel and Lombard II, we now hold that evidence that a ch. 980 respondent will be on probation or parole if not adjudicated and committed as a sexually violent person is not relevant to the determination whether the respondent is a sexually violent person as defined in Wis. Stat. § 980.01(7); nor are the rules of any such probation or parole relevant to that determination. Section 980.01(7) plainly defines dangerousness as "dangerous because [the person] suffers from a mental disorder that makes it likely that the person will engage in acts of sexual violence," without regard to the nature of the restraint or supervision imposed on the person. Neither the detailed subsection on the allegations the petition must contain, § 980.02, nor the subsections on the probable cause hearing and trial, Wis. Stat. §§ 980.04 and 980.05, give any indication that the existence or degree of supervision if the person is not committed is relevant to the determination whether the person is sexually violent.

¶ 48. Moreover, the construction Mark proposes would base that determination on facts that might change after the petition is dismissed. In Mark's view, some rules of his probation make it less likely that he will reoffend in the future, and he emphasizes that in his situation the rules are known. However, the list of rules specifically states that "The rules may be modified at any time, as appropriate." It is not reasonable to look to rules of supervision that are subject to change as a basis for deciding whether a person should be committed because he or she is likely to engage in future acts of sexual violence. We are convinced the legislature did not intend this.

¶ 49. We agree with the circuit court that evidence of the rules of Mark's probation is not relevant as a matter of law. The court therefore properly granted the State's motion to exclude this evidence.

CONCLUSION

¶ 50. We conclude that Mark's statements relating to the woman living next door at his hotel are incriminating under the definition we employed in Zanelli II, and a remand is necessary as to these statements. The remaining statements were not erroneously admitted because they are not incriminating under Zanelli II; and Mark's argument on the due process clause of the Fourteenth Amendment does not provide a basis for excluding statements that are admissible under our Fifth Amendment analysis in Zanelli II. We also conclude the circuit court properly excluded evidence of the rules of Mark's probation because, as a matter of law, they are not relevant to the determination whether Mark is a sexually violent person as defined in Wis. Stat. § 980.01(7).

¶ 51. On remand the circuit court shall determine whether the statements we have identified as incriminating were compelled, and if they were, if their admission was harmless error. If the court determines that one or more statements were compelled and the admission was not harmless, then the court must vacate the judgment and order, and Mark is entitled to a new trial. If, on the other hand, the court determines either that no statement was compelled or that, if any were, the admission was harmless, then the judgment and order will remain in effect.

By the Court. — Judgment and order affirmed in part and cause remanded with directions.

       All references herein to ch. 980 are to the Wisconsin Statutes (2003-04).

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

       In his first brief, Mark referred to two additional exhibits in describing the statements he was challenging: one a Violation Investigation Report dated September 10, 1999, based on Mark's written statement about the woman from his church; and the other a Violation/Revocation Summary based on his written statement about the woman who lived at his hotel. Because Mark does not distinguish in his arguments between these reports and the written statements they are based on, we do not treat them separately in our analysis.

       The State called a fourth witness, a police officer who interviewed Mark in 1993 and testified to the admissions Mark made to both charged and uncharged sexual assaults. The only witness Mark called was an expert who criticized the actuarial instruments used by the State's experts but did not examine or evaluate Mark.

       The State also asserts that, because of the lack of objection, the proper vehicle for review is a claim for ineffective assistance of counsel, which requires that a motion first be brought in the circuit court. Mark responds that there is no statutory provision for postconviction motions in Wis. Stat. ch. 980 proceedings prior to a direct appeal, as there is for criminal proceedings. See Wis. Stat. § 809.30. At oral argument, the State agreed there was no statutory provision for postconviction proceedings under ch. 980, but explained that the State has nonetheless not objected to remands for postconviction hearings on ineffective assistance of counsel claims. Because we choose to exercise our power to decide the issue on the merits in spite of waiver, we do not discuss this procedural issue.
      Mark also argues that, despite the waiver, he is entitled to a new trial because the admission of the statements was plain error, Wis. Stat. § 901.03(4), and because of the interests of justice. Wis. Stat. § 752.35. Our decision to decide the merits of Mark's claims makes it unnecessary to address these arguments.

       The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V Article I, Section 8 of the Wisconsin Constitution contains the same prohibition.

         Miranda v. Arizona, 384 U.S. 436 (1966).

       It is also not consistent with the Lombard I court's approval of our ruling in Zanelli I that "a person subject to a pre-petition evaluation has the right to remain silent pursuant to Wis. Stat. § 980.05(1m)." Lombard I, 273 Wis. 2d 538, ¶ 40.

       More specifically, statements in both Zanelli II, 223 Wis. 2d at 568-69 and Lombard I, 273 Wis. 2d 538, ¶¶ 37-42, that speak in terms of the Fifth Amendment right not to be questioned under some circumstances are not consistent with the relevant protection accorded by the Fifth Amendment. Wisconsin Stat. § 980.05(1m) provides that "[a]ll constitutional rights available to a defendant in a criminal proceeding are available to" ch. 980 respondents in a "trial to determine whether the person... is a sexually violent person." The constitutional trial right afforded by the Fifth Amendment's self-incrimination clause protects defendants against the use of compelled self-incrimination at trial. See United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) ("The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial."). Thus, it would seem that the pertinent question is not whether a ch. 980 respondent's constitutional rights were violated at the time the respondent made a prepetition statement, but instead whether the admission of the statement at the ch. 980 trial would violate the Fifth Amendment if the proceeding were a criminal trial.

        Refocusing attention on admissibility at Mark's trial suggests another important question. Regardless of plain language, courts must still question whether a particular application of a statute produces an unreasonable result unintended by the legislature. "[Sltatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. Thus, a significant question is whether the legislature intended to prohibit at ch. 980 trials the use of all statements made by respondents that would be inadmissible under a Fifth Amendment analysis if offered by the State in a criminal trial. How this question is answered has far-reaching implications for ch. 980 trials because these trials commonly include the admission of respondent statements made to agents of the State while the respondent was in custody or under supervision.
      When addressing a related Wis. Stat. § 980.05(lm) issue regarding the offensive use of issue preclusion by the State in a ch. 980 proceeding (which use we assumed would not be permitted in a criminal trial), we used this analysis:
      [The ch. 980 respondent's] interpretation of [Wis. Stat. § 980.05(lm)] would mark a dramatic shift in how Chapter 980 trials are conducted, requiring a retrial of prior sexual assault convictions even though the person in question has previously-been found guilty of the offense beyond a reasonable doubt. Absent a stipulation by a respondent, his sexual assault victim or victims from these prior cases would be required to endure a second trial.
      We do not believe that the legislature intended to subject victims and their families to the ordeal of a second trial when the respondent has already been found guilty of that crime beyond a reasonable doubt. If the legislature had intended this to be the procedure in Chapter 980 trials, it would have provided so expressly.

        In re Commitment of Sorenson, 2001 WI App 251, ¶¶ 25-26, 248 Wis. 2d 237, 635 N.W.2d 787. On review of our decision, the supreme court found it unnecessary to address the legislative intent analysis used by this court. See Sorenson, 2002 WI 78, ¶¶ 11, 15-16, 21-22, 25, 254 Wis. 2d 54, 646 N.W.2d 354 (Instead, the supreme court assumed for argument's sake that the State could use issue preclusion offensively in a ch. 980 trial and decided that its use, in light of the particular facts of that case, was unfair to Sorenson. Id., ¶¶ 22, 25.). We refer to our analysis in Sorenson because it suggests that the legislature may not have intended some of the consequences of the language it used in Wjs. Stat. § 980.05(lm) and some of those consequences might appropriately be characterized as unreasonable.
      In any event, in view of Zanelli II and Lombard I, these questions must be resolved by the supreme court, not this court.

       The report states in part:
      On 4/25/00, Charles Mark reported to the agent that he "screwed up big," and revealed violations 1 and 2, along with the complaint that he was accused of stalking the victim, [JC], An apprehension request was issued upon receipt of the subject's self reported violations, and he voluntarily turned himself in to police on 4/25/00.

       The Fourteenth Amendment provides in part that no state may "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV( § 1.

        Mincey v. Arizona, 437 U.S. 385, 397 (1978), was decided before the Court in Arizona v. Fulminante, 499 U.S. 279, 295 (1991), held that a coerced confession was subject to a harmless error analysis.

       We went on in Thompson to decide that under Mincey it was not proper to employ a harmless error analysis and instead an automatic reversal was required. 142 Wis. 2d at 834-36. However, that conclusion is no longer correct after Fulminante, 499 U.S. at 295.

       The State at oral argument acknowledged that in a civil proceeding brought by the State the due process clause might prohibit the State's use of a person's involuntary statement against him or her, depending on the circumstances. We do not address this issue. Mark's arguments are based on the provision in Wis. Stat. § 980.05(lm) according him the rights at trial that a defendant has in a criminal proceeding. He does not develop an argument that, independent of that provision, the use of his statements against him offended his right to due process in a civil proceeding.

       Wisconsin Stat. § 980.09(2) provides:
      (2) Petition without secretary's approval, (a) A person may petition the committing court for discharge from custody or supervision without the secretary's approval.... If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person....
      (b) If the court determines at the probable cause hearing under par. (a) that probable cause exists to believe that the committed person is no longer a sexually violent person, then the court shall set a hearing on the issue .... At the hearing, the state has the burden of proving by clear and convincing evidence that the committed person is still a sexually violent person.
      (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the person shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b), the court may proceed to determine, using the criteria specified in s. 980.08(4)(b), whether to modify the person's existing commitment order by authorizing supervised release.