author: ANDERSON, J.

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

      No. 01-0222-CR.

      Submitted on briefs July 19, 2001.

    Decided October 10, 2001.

    2001 WI App 275
    (Also reported in 637 N.W.2d 411.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Michele A. Tjader of Kalal & Associates, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Bradley J. Priebe, assistant district attorney of Oshkosh.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jennifer Nashold, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. Paul J. VanLaarhoven appeals from a judgment of conviction for operating a motor vehicle while intoxicated, third offense, in violation of Wis. Stat. §§ 346.63(1)(a) and 346.65(2)(c). VanLaarhoven challenges the denial of his motion to suppress the results of a chemical test of his blood. Specifically, VanLaarhoven contends that the police were required to obtain a search warrant before submitting his blood sample for testing. We reject his argument and affirm the judgment of conviction.

¶ 2. The facts are not in dispute. VanLaarhoven was arrested for operating a motor vehicle while intoxicated. He was advised under the Implied Consent Law and consented to submit to a chemical test of his blood. A blood sample was drawn from VanLaarhoven only after he provided two insufficient breath samples. Some days later, the sample was submitted to the Wisconsin State Hygiene Laboratory for analysis. The results established a blood alcohol concentration of 0.173%.

¶ 3. VanLaarhoven filed a series of motions. Included in the blizzard of motions was a motion to suppress on the grounds that regardless of whether the initial seizure of the blood sample without a warrant was lawful, the subsequent analysis of the blood sample required a warrant because there were neither exceptions to the warrant requirement nor exigent circumstances that justified the warrantless analysis of his blood. The trial court rejected VanLaarhoven's argument that the police could not conduct a search of his blood sample without first obtaining a warrant. Van-Laarhoven then pled no contest, and he appeals from the judgment of conviction.

¶ 4. VanLaarhoven suggests that his blood sample, once obtained, cannot be analyzed for eviden-tiary purposes without obtaining a second search warrant. Whether a search warrant is required before a blood draw was recently addressed in State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, review denied, 2000 WI 121, 239 Wis. 2d 310, 619 N.W.2d 93 (Wis. Oct 17, 2000) (No. 99-1765-CR), cert. denied, Thorstad v. Wisconsin, 121 S. Ct. 1099 (U.S. Wis. Feb. 20, 2001) (No. 00-1145). There, citing to Schmerber v. California, 384 U.S. 757, 769-70 (1966), we acknowledged that the seizure of an Implied Consent Law blood sample falls under the "exigent circumstances" exception to the warrant requirement. Thorstad, 2000 WI App 199 at ¶ 5 ("[B]ecause the human body rapidly eliminates alcohol from the system, 'the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.' "). However, VanLaarhoven contends that the exigency is over once the blood sample is obtained and the authority of the police to act further, without a judicially issued warrant, is terminated.

¶ 5. The issue VanLaarhoven presents on appeal requires the application of the constitutional principles of search and seizure. The application of constitutional principles to the undisputed facts is a question of law that we decide without deference to the circuit court's decision. State v. Foust, 214 Wis. 2d 568, 571-72, 570 N.W.2d 905 (Ct. App. 1997). Despite our de novo standard of review, we nonetheless value the trial court's decision on the issues. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993).

¶ 6. Before addressing VanLaarhoven's arguments, it is necessary to briefly review search and seizure principles and Wisconsin's Implied Consent Law. Both the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution forbid unreasonable searches and seizures. State v. Boggess, 115 Wis. 2d 443, 448, 340 N.W.2d 516 (1983). Warrantless searches are deemed unreasonable per se, subject to a few carefully delineated exceptions that are "jealously and carefully drawn." Id. at 449. Included in the exceptions to the warrant requirement is consent to search. State v. Callaway, 106 Wis. 2d 503, 510, 317 N.W.2d 428 (1982).

¶ 7. It is well accepted, from the statute and the case law, that under Wisconsin's Implied Consent Law, the consent given by all individuals who apply for a driver's license is the consent to provide a sample and the consent to the chemical analysis of the sample. Wisconsin Stat. § 343.305(2) codifies the Implied Consent Law:

Any person who ... drives or operates a motor vehicle upon the public highways of this state ... is deemed to have given consent to one or more tests of his or her breath, blood or urine, for the purpose of determining the presence or quantity in his or her blood or breath, of alcohol... when requested to do so by a law enforcement officer ... or when required to do so.. .. Any such tests shall be administered upon the request of a law enforcement officer. The law enforcement agency by which the officer is employed shall be prepared to administer, either at its agency or any other agency or facility, 2 of the 3 tests ... and may designate which of the tests shall be administered first. (Emphasis added.)

In State v. Neitzel, 95 Wis. 2d 191, 201, 289 N.W.2d 828 (1980), the Wisconsin Supreme Court explained the Implied Consent Law:

[T]he accused intoxicated driver has no choice in respect to granting his consent. He has, by his application for a license, waived whatever right he may otherwise have had to refuse to submit to chemical testing. It is assumed that, at the time a driver made application for his license, he was fully cognizant of his rights and was deemed to know that, in the event he was later arrested for drunken driving, he had consented, by his operator's application, to chemical testing under the circumstances envisaged by the statute. (Emphasis added.)

¶ 8. In addition to VanLaarhoven's implied consent to a chemical analysis of his breath, blood or urine, he was given the information in the Informing the Accused form twice — once before a breath sample was attempted and again before the blood sample was taken. Both times, after having been read the Informing the Accused form, VanLaarhoven voluntarily submitted to the testing procedure. In County of Ozaukee v. Quelle, 198 Wis. 2d 269, 277, 542 N.W.2d 196 (Ct. App. 1995), we wrote, "[e]very driver in Wisconsin impliedly consents to take a chemical test for blood alcohol content. Section 343.305(2), Stats. A person may revoke consent, however, by simply refusing to take the test." We conclude that by operation of law and by submitting to the tests, VanLaarhoven consented to a taking of a sample of his blood and the chemical analysis of that sample.

¶ 9. VanLaarhoven relies on three United States Supreme Court cases to support his argument that the testing of blood is a separate search necessitating a warrant. Those cases do not support his contention. In Walter v. United States, 447 U.S. 649, 651-52 (1980), a third party received illegal pornographic tapes from the defendant and turned them over to the FBI. FBI agents then viewed the tapes without a warrant. Id. at 652. The Court held that this warrantless search in the absence of exigent circumstances and without prior consent was illegal. Id. at 654, 659. VanLaarhoven's situation differs from Walter in that VanLaarhoven consented to the search and seizure of his blood. In Walter, the defendant consented to nothing. It is not surprising, therefore, that the Supreme Court required a warrant before the FBI could view the films given to them by a person not employed by the government.

¶ 10. VanLaarhoven also relies upon United States v. Jacobsen, 466 U.S. 109 (1984), for the proposition that police may not search without a warrant merely because they were entitled to seize without a warrant. In Jacobsen, the Court stated that even when a package is lawfully seized to prevent destruction or loss of suspected contraband, the Fourth Amendment requires government agents to obtain a warrant before examining the contents. Id. at 114. Jacobsen does not hold that consent is not an exception to the Fourth Amendment warrant requirement. VanLaarhoven consented to the extraction and testing of his blood.

¶ 11. Finally, in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 632-33 (1989), the Court concluded that certain federal regulations requiring that railroad employees involved in railroad accidents provide blood and urine samples did not violate the Fourth Amendment to the United States Constitution. VanLaarhoven does not rely upon this opinion to support his assertion that analysis of the blood sample requires a separate warrant. Rather, he relies upon Skinner to support a policy argument that "the Fourth Amendment's protection of the 'reasonable expectation of privacy' most certainly is involved in the government's analysis of the seized sample." And, as we explained in our discussion of Walter, VanLaarhoven has consented to both the extraction of his blood and its subsequent testing and has waived any privacy interest in the blood sample.

¶ 12. We conclude that United States v. Snyder, 852 F.2d 471 (9th Cir. 1988), and State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991), are more on point. In Snyder, the defendant was arrested for operating while intoxicated and a blood sample was taken without the defendant's consent. Id. at 472. Two days later, the sample was submitted for analysis without a warrant. Id. The defendant brought a motion to suppress, claiming that the warrantless analysis of the blood sample was an unreasonable search. The trial court denied the motion. Id.

¶ 13. Relying largely on Schmerber, the Snyder court upheld the trial court's ruling. The court said:

The flaw in Snyder's argument is his attempt to divide his arrest, and the subsequent extraction and testing of his blood, into too many separate incidents, each to be given independent significance for fourth amendment purposes.... It seems clear, however, that Schmerber viewed the seizure and separate search of the blood as a single event for fourth amendment purposes....
The [Schmerber] Court therefore necessarily viewed the right to seize the blood as encompassing the right to conduct a blood-alcohol test at some later time.

Snyder, 852 F.2d at 473-74.

¶ 14. In Petrone, the police obtained a search warrant directing them to seize "photo album(s) containing nude photographs of female juvenile (s) together with developed photographs and 35 mm negatives of same." Petrone, 161 Wis. 2d at 538 n.2. In addition, they were authorized to seize "all. . . film. . . used in the taking ... of photographic pictures. ..." Id. at 538. The police seized several rolls of undeveloped film and had to develop the film before deciding if it included pornographic photographs. Id. The defendant sought to suppress the photos the police developed from the film seized, arguing that "the process of developing the films was beyond the authority of the warrant." Id. at 540.

¶ 15. The Wisconsin Supreme Court rejected Petrone's argument. The court held that "[bjecause the undeveloped film was lawfully seized pursuant to the warrant, the deputies were justified in developing and viewing the film." Id. at 545. In reaching this conclusion, the court reasoned:

Developing the film is simply a method of examining a lawfully seized object. Law enforcement officers may employ various methods to examine objects lawfully seized in the execution of a warrant. For example, blood stains or substances gathered in a lawful search may be subjected to laboratory analysis. The defendant surely could not have objected had the deputies used a magnifying glass to examine lawfully seized documents or had enlarged a lawfully seized photograph in order to examine the photograph in greater detail. Developing the film made the information on the film accessible, just as laboratory tests expose what is already present in a substance but not visible with the naked eye. Developing the film did not constitute, as the defendant asserts, a separate, subsequent unauthorized search having an intrusive impact on the defendant's rights wholly independent of the execution of the search warrant. The deputies simply used technological aids to assist them in determining whether items within the scope of the warrant were in fact evidence of the crime alleged.

Id. (emphasis added; citation omitted).

¶ 16. Petrone and Snyder teach that the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant. Both decisions refuse to permit a defendant to parse the lawful seizure of a blood sample into multiple components, each to be given independent significance for purposes of the warrant requirement.

Conclusion

¶ 17. VanLaarhoven concedes that under Thorstad, 2000 WI App 199 at ¶ 17, his blood sample was lawfully taken. VanLaarhoven is wrong in his argument that the chemical analysis of his blood sample is a separate event for warrant requirement purposes. In this case, law enforcement was permitted to conduct an analysis of VanLaarhoven's blood to determine if it contained evidence of a blood alcohol concentration in excess of the legal limit.

By the Court. — Judgment affirmed.

       This appeal was originally assigned to a one-judge panel under Wis. Stat. § 752.31(2)(c) (1999-2000). Because the issue presented was determined to be one of statewide importance and had only been previously addressed in unpublished opinions, the chief judge issued an order under § 752.31(3) that a three-judge panel decide this appeal. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       There is no doubt that the test referred to in the statute and case law is the chemical analysis of a sample of breath, blood or urine provided by the alleged intoxicated driver. In City of Madison v. Bardwell, 83 Wis. 2d 891, 900, 266 N.W.2d 618 (1978), the Wisconsin Supreme Court addressed the reliability of chemical tests and held that the method of measurement of blood alcohol by any test specified by statute is presumed reliable.

       The content of the Informing the Accused form is mandated by Wis. Stat. § 343.305(4), and informs the driver that he or she has been arrested for drunk driving; that law enforcement wants to take a sample of his or her breath, blood or urine to determine the alcohol concentration in the driver's system; that refusal to submit to the test will result in negative consequences; and, the driver may take additional tests after completing the first test.

       In his reply brief, VanLaarhoven argues that Walter v. United States, 447 U.S. 649 (1980), and United States v. Snyder,
        852 F.2d 471 (9th Cir. 1988), cannot be reconciled. In Walter, law enforcement came into possession of the pornographic film through the actions of a private party, Walter, 447 U.S. at 651-52, while in Snyder, law enforcement came into possession of the blood sample by operation of California's Implied Consent Law, Snyder, 852 F.2d at 472. Contrary to VanLaarhoven's impassioned argument that if we reconcile Walter and Snyder as we have, it would be a declaration of war against the Constitution. Our reconciliation of these two cases recognizes that the warrant requirement permits law enforcement to examine evidence seized either with a warrant or under one of the exceptions to the warrant requirement.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    In re the Incorporation of the Town of Port Washington as a Village: Jon Wirth and Lee Schlenvogt, Petitioners-Appellants, v. City of Port Washington, Intervenor-Respondent-Respondent.
    Court of Appeals

      No. 01-0583.

      Submitted on briefs August 24, 2001.

    Decided October 10, 2001.

    2001 WI App 277
    (Also reported in 637 N.W.2d 442.)

      On behalf of the petitioners-appellants, the cause was submitted on the briefs of H. Stanley Riffle of Arenz, Molter, Macy & Riffle, S.C. of Waukesha.
    On behalf of the intervenor-respondent-respondent, the cause was submitted on the brief of Eric E. Eber-hardt, city attorney.
    Before Brown, Anderson and Snyder, JJ.
   BROWN, J.

¶ 1. On this appeal we are asked to determine whether an inaccurate scale map accompanying an incorporation petition can be deemed to "reasonably show[] the boundaries" of the territory to be incorporated as required under Wis. Stat. § 66.014(2)(c) (1997-98). Our answer is that if the scale map and description, when viewed together, fairly apprise the public of the territory to be incorporated, the statute will be satisfied notwithstanding inconsequential errors or omissions in the map. In this case, the description and map together leave no doubt as to the location of the territory sought to be incorporated. We therefore reverse the orders of the trial court dismissing the petition and remand for further proceedings consistent with this opinion.

¶ 2. Jon Wirth and Lee Schlenvogt are the designated representatives for the Town of Port Washington in the incorporation proceeding. After they filed the petition, the notice of filing the petition and the notice of hearing, as required by Wis. Stat. § 66.014(4), the trial court granted permission for the City of Port Washington to intervene. At the hearing to determine whether the petition met the requirements of § 66.014 and Wis. Stat. § 66.015, the City argued that the scale map attached to the petition did not reasonably show the boundaries of the territory sought to be incorporated. Specifically, the court heard testimony that the map incorrectly included five parcels, totaling 93.99 acres, which had previously been annexed by the City and the Village of Saukville. Based on this testimony, the trial court issued a memorandum decision and order to dismiss the petition on the grounds that the scale map was not sufficiently accurate to determine the boundaries of the territory to be incorporated. The trial court later denied the representatives' motion for reconsideration.

¶ 3. On appeal, the representatives contend that the trial court erred by imposing a standard of absolute accuracy not required by the statute. They assert that based on all the evidence, the map reasonably showed the territorial boundaries. The City responds that the court did not mistakenly impose a standard of absolute accuracy and that under the prescribed standard of reasonableness the scale map is defective because it contained territory previously annexed by the City and Village of Saukville. We do not reverse a trial court's findings of fact unless they are clearly erroneous. Wis. Stat. § 805.17(2). The determination of what is "reasonable," however, involves the application of a legal standard to a set of facts and is therefore a question of law. See Wassenaar v. Panos, 111 Wis. 2d 518, 525, 331 N.W.2d 357 (1983).

¶ 4. The statute setting forth the procedural requirements for incorporation petitions provides in relevant part:

The petition shall designate a representative of the petitioners, and .. . describe the territory to be incorporated with sufficient accuracy to determine its location and have attached thereto a scale map reasonably showing the boundaries thereof ....

Wis. Stat. § 66.014(2)(c) (emphasis added). There is no case in Wisconsin that addresses how this standard shall be applied in determining the sufficiency of a scale map in an incorporation proceeding. We find guidance, however, in a number of cases reviewing the sufficiency of legal descriptions in annexation proceedings under Wis. Stat. § 66.021(4) (1991-92). Prior to the enactment of 1993 Wis. Act 247, § 66.021(4) set forth the requirements for annexation petitions in language identical to that under the current statute for incorporation petitions. Before we discuss the case law, we will review the legislative changes to the annexation statute.

¶ 5. Prior to 1993, Wis. Stat. § 66.021(4) provided in relevant part:

(4) Petition, (a) The petition shall state the purpose of the petition and contain a description of the territory proposed to be annexed, sufficiently accurate to determine its location, and have attached thereto a scale map reasonably showing the boundaries of such territory and the relation of the territory to the municipalities involved.

Wis. Stat. § 66.021(4)(a) (1991-92) (emphasis added). The passage of 1993 Wis. Act 247, § 1 removed the flexible standard embodied in the italicized language and imposed in its place specific definitions of the terms "legal description" and "scale map" as set forth below:

(am) "Legal description" means a complete description of land to be annexed without internal references to any other document, and shall be described in one of the following ways:
1. By metes and bounds... and in one of the following ways:
a. By government lot.
b. By recorded private claim.
c. By quarter section, section, township and range.
(e) "Scale map" means a map that accurately reflects the legal description of the property to be annexed and the boundary of the annexing city or village, and that includes a graphic scale on the face of the map.

Wis. Stat. § 66.021(1)(am), (e) (1993-94). The requirements for the petition incorporated these terms: "The petition shall. . . contain a legal description of the territory proposed to be annexed and have attached thereto a scale map." Sec. 66.021(4)(a).

¶ 6. We presume the legislature enacted this legislation with full knowledge of existing law, see Town of Madison v. City of Madison, 269 Wis. 609, 614, 70 N.W.2d 249 (1955), and purposefully imposed more stringent standards of accuracy in scale maps and legal descriptions associated with annexation petitions. Indeed, our interpretation of the statute leads us to the conclusion that the legislature made a clear choice to treat annexations differently from incorporations. This distinction is entirely reasonable, given the unique real time difficulties annexation presents to governmental entities. Annexation, for example, subjects the territory to the jurisdiction and government of the annexing municipality. See Town of Blooming Grove v. City of Madison, 70 Wis. 2d 770, 774, 235 N.W.2d 493 (1975) ("Annexation of territory from a township may in fact have serious consequences to the town, not the least of which may be its tax base."). The petition in an incorporation action, however, is merely the first step in a long and arduous campaign to change the legal entity of the area under consideration. The complexities inherent in the incorporation process are realized during review by the Department of Administration. See, e.g., Wis. Stat. § 66.016(1)(a). On the other hand, the complexities in the annexation process are brought to bear by the petition process itself. See, e.g., Wis. Stat. § 66.021(5)(a).

¶ 7. We now turn to the case law that reviewed the sufficiency of annexation petitions under the former versions of Wis. Stat. § 66.021(4). In Town of Greenfield v. City of Milwaukee, 272 Wis. 388, 392, 75 N.W.2d 434 (1956), a notice of intent contained an erroneous legal description which stated 91 feet instead of 915 feet. In upholding the validity of the legal description, the court determined that the standard to be applied is whether the area sought to be annexed is "susceptible of reasonable identification" even though the description is erroneous or incomplete. Id. Thereafter, in City of Madison v. Village of Monona, 10 Wis. 2d 32, 37-38, 102 N.W.2d 206 (1960), the court determined that a scale map containing minor errors nonetheless reasonably showed the boundaries of the territory to be annexed. In addition, a legal description that omitted the heading was sufficiently accurate to identify the location of the property in question. Id. at 36. Finally, in Town of Menasha v. City of Menasha, 42 Wis. 2d 719, 735-37, 168 N.W.2d 161 (1969), the court held that an erroneous legal description (labeled west instead of east) was sufficiently accurate under the statute because it was not misleading, and the scale map verified the area proposed to be annexed.

¶ 8. The approach we glean from these cases is that if the description and the map, when viewed together, fairly apprise the public of the territory to be incorporated, the statute will be satisfied notwithstanding certain errors or omissions. We turn now to the evidence presented to the trial court.

¶ 9. Our review of the record reveals that the description and map together made clear that the incorporation involved all of the territory within the Town of Port Washington. The description, though worded in the negative, accurately reflected the intent of the incorporation. A detailed metes and bounds description is not required for incorporation as it is for annexation. There was no testimony that anyone was confused or misled by the inaccuracies in the map. All of the erroneously included territory was land annexed to the City or Village of Saukville, which one would reasonably understand was not included in the territory sought to be incorporated into a village.

¶ 10. Thus, when the description and map contained in the petition are viewed together, there can be no doubt as to the location of the territory sought to be incorporated. The territory was clearly identifiable and could be ascertained by the public. Moreover, the errors in the map are inconsequential when compared to the total amount of territory, more than 18 square miles, involved in this case. The 94 acres which are the subject of this dispute comprise less than one percent of the territory sought to be incorporated. We determine that the errors that comprise this tiny fraction of the total incorporation are de minimis and do not render the scale map insufficient so as to void the incorporation petition. See Town of Delavan v. City of Delavan, 176 Wis. 2d 516, 530-31, 500 N.W.2d 268 (1993) (applying principle of de minimis to hold trivial lack of contiguity insufficient to void annexation).

¶ 11. We believe this result is founded in sound public policy. Territories are often subject to protracted and overlapping struggles between governing entities. Indeed, such is the situation in this case. We observe that the annexation of the largest parcel, known as the Balistreri property and consisting of approximately 46 acres, occurred on November 23, 1999, after the notice of intent was published. Therefore, the Balistreri property was accurately depicted on the scale map as of October 21, 1999, the date the notice was filed, but was inaccurately depicted as of April 18, 2000, the date the petition was filed. Finally, on November 13, 2000, a trial court declared the Balistreri annexation void. An absolute standard of accuracy would require petitioners to continuously track legal challenges to annexations and to constantly update scale maps during the course of the incorporation proceeding. There is no indication in the statute that petitioners are required to submit maps with this degree of accuracy. As the facts in this case suggest, an exact standard would impose an impractical, if not impossible, burden on petitioners. Based on the foregoing, we reverse the orders of the trial court and remand for further proceedings consistent with this opinion.

By the Court. — Orders reversed and cause remanded with directions.

       Wisconsin Stat. § 66.014(2)(c) (1997-98) has been renumbered as Wis. Stat. § 66.0203(2)(c) (1999-2000). Unless otherwise noted, we will refer to the 1997-98 version of the Wisconsin Statutes throughout this opinion because that is the version cited by the parties and the trial court. The 1999-2000 version of the statutes cited herein contain no substantive changes of significance to this appeal.

       The courts have addressed the perplexing problems associated with annexation by applying the established rule of strict conformity with the statutory mandate. See Town of Blooming Grove v. City of Madison, 70 Wis. 2d 770, 774, 235 N.W.2d 493 (1975).

       The heading was the initial paragraph of the legal description that described the town, range and section numbers in which the particular parcel of land was located. City of Madison v. Village of Monona, 10 Wis. 2d 32, 35-36, 102 N.W.2d 206 (1960).

       The description defined the incorporated territory as including all of the Town of Port Washington that was not part of the City of Port Washington or the Village of Saukville.


text:
    In re the Incorporation of a Portion of the Town of Sheboygan, Sheboygan County, Wisconsin, as a Village: Town of Sheboygan, Petitioner-Appellant, v. City of Sheboygan, Intervenor-Respondent.
    Court of Appeals

      No. 01-1129.

      Submitted on briefs July 20, 2001.

    Decided October 10, 2001.

    2001 WI App 279
    (Also reported in 637 N.W.2d 770.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Michael J. Bauer of Hopp, Powell, Bauer, Donohue & Buesing, Sheboygan.
    On behalf of the intervenor-respondent, the cause was submitted on the brief of Stephen G. McLean, city attorney of Sheboygan.
    Before Nettesheim, RJ, Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. The Town of Sheybogan (Town) appeals a circuit court order which referred its petition for incorporation to the Department of Administration (DOA) pursuant to Wis. Stat. § 66.0203(8) (1999-2000). The Town argues that the circuit court exceeded its authority under § 66.0203(8) when it made a finding that the Town's incorporation petition was entertained on September 28, 2000, the date it was filed with the circuit court. The circuit court did not exceed its authority; therefore, we affirm.

¶ 2. On February 14, 2000, the DOA dismissed the Town's first Petition for Incorporation. Less than one year later, on September 28, 2000, the Town filed a third Petition for Incorporation of a portion of the Town as a village with the circuit court. This third petition is the subject of this appeal.

¶ 3. The City of Sheboygan (City) intervened, filing a motion to dismiss the Town's third petition claiming that under Wis. Stat. § 66.0203(9)(h), the circuit court could not entertain the petition because it was for incorporation of substantially the same territory as the first petition, and it was filed less than one year after the date of dismissal of the first petition.

¶ 4. The Town responded to the City's motion, claiming that the one-year period of delay required before renewal of an incorporation petition was not an issue because the "entertainment date" of the third petition would not be within one year from the date that the DOA dismissed the first petition. The Town argued that the "date of entertainment" is the date on which a petition is referred by the circuit court to the DOA. The City countered that the "date of entertainment" is the date on which a petition is filed with the circuit court.

¶ 5. The circuit court construed the filing date of the petition to be the date it was "entertained." It held that the third petition was therefore "entertained" within a one-year period. The circuit court then referred the petition to the DOA, leaving the determination of whether the area described in the subsequent petition was for "substantially the same territory" as that described in the prior petition.

¶ 6. Wisconsin Stat. ch. 66 contains the rules regarding municipal law. Subchapter II of this chapter addresses incorporation rules. Wisconsin Stat. § 66.0203 addresses the procedure for incorporation of villages and cities. This section provides in relevant part:

(8) Function of the circuit court, (a) After the filing of the petition and proof of notice, the circuit court shall conduct a hearing at the time and place specified in the notice, or at a time and place to which the hearing is duly adjourned.
(b) On the basis of the hearing the circuit court shall find if the standards under s. 66.0205 are met. If the court finds that the standards are not met, the court shall dismiss the petition. If the court finds that the standards are met the court shall refer the petition to the department and the department shall determine whether the standards under s. 66.0207 are met.
(9) Function of the department.
(e) The determination of the department made in accordance with the standards [set forth under this chapter] shall be one of the following:
1. The petition as submitted is dismissed.
2. The petition as submitted is granted.
3. The petition as submitted is dismissed with a recommendation that a new petition he submitted to include more or less territory as specified in the department's findings and determination.
(f) If the department determines that the petition shall be dismissed under par. (e)l, the circuit court shall issue an order dismissing the petition....
(g) The findings of both the court and the department shall be based upon facts as they existed at the time of the filing of the petition.
(h) Except for an incorporation petition which describes the territory recommended by the department under s. 66.0203(9)(e)3, no petition for the incorporation of the same or substantially the same territory may be entertained for one year following the date of dismissal under par. (f) of the petition or the date of any election at which incorporation was rejected by the electors. (Emphasis added.)

¶ 7. The issue on appeal is what is the "date of entertainment." This question involves the interpretation of Wis. Stat. § 66.0203, which is a question of statutory construction. See Walag v. Town of Randall, 213 Wis. 2d 424, 427-28, 570 N.W.2d 623 (Ct. App. 1997). Statutory construction presents a question of law that we review de novo. Id.

¶ 8. The Town argues that findings made under Wis. Stat. § 66.0203(9)(h) are to be made exclusively by the DOA. The Town concludes that the circuit court did not have authority to make the finding that the third petition was "entertained" within one year of dismissal of the first petition. The Town maintains that § 66.0203(8) limits the circuit court's authority to make a finding as to whether a petition complies with certain minimum standards as laid out in Wis. Stat. § 66.0205, and that if the court finds that a petition meets those standards, the court must refer it to the DOA.

¶ 9. We disagree. In construing a statute, our purpose is to give effect to the intent of the legislature. Walag, 213 Wis. 2d at 428. Wisconsin Stat. ch. 66 is silent as to whether the "date of entertainment" determination is to be made by a particular body. Nowhere in the chapter is there a legislative directive that the DOA has exclusive authority to make this finding. It is presumed that the legislature is cognizant of what language to include or omit when it enacts laws. The Town refers us to the titles of subsec. (8) Function of the circuit court and subsec. (9) Function of the department as demonstrative of the legislative intent to delineate and circumscribe the duties of the two bodies, such that the circuit court is without jurisdiction to make a finding under subsec. (9).

¶ 10. This is a leap we will not take. The Town ignores a basic rule of statutory construction: the title, while helpful in discerning legislative intent, is not part of the statute and cannot prevail over its language. State v. Black, 188 Wis. 2d 639, 651, 526 N.W.2d 132 (1994); Wis. Stat. § 990.001(6). In order to arrive at legislative intent, we do not construe a subparagraph or its title in isolation, but examine it in light of the entire statute. Varda v. Gen. Motors Corp., 2001 WI App 89, ¶ 30, 242 Wis. 2d 756, 626 N.W.2d 346. The purpose of the incorporation subchapter is to ensure that the development of territory from town to incorporated status proceeds in an orderly and uniform manner to assure compliance with certain minimum standards which take into account the needs of both urban and rural areas. Wis. Stat. § 66.0201(1). Within the incorporation subchapter is Wis. Stat. § 66.0203, which details duties of the circuit court and the DOA; nowhere does it bar the circuit court from finding the "date of entertainment" of a petition. We do not interpret subsec. (8), entitled Function of the circuit court, as proscribing the circuit court from performing any duty not found under this subsection. In fact, subsec. (9), entitled Function of the department, includes several duties for the circuit court. Sec. 66.0203(9)(d), (f), (g).

¶ 11. We determine that the "date of entertainment" is the date.a petition is filed with the circuit court. We will not hold that the legislature intended to proscribe the circuit court from making this finding. In fact, we believe that the circuit court, in making this finding and in referring the "same or substantially the same territory" finding to the DOA, enabled the incorporation process to continue in an orderly manner while ensuring that minimum standards were followed. This is the purpose of the incorporation statute. Wis. Stat. § 66.0201(1).

¶ 12. The "date of entertainment" was September 28, 2000 — the day the Town's third petition was filed with the circuit court. The circuit court did not exceed its authority in finding that the "date of entertainment" was within one year of the dismissal of the first petition. Our holding properly discerns and gives effect to the intent of the legislature. See State v. Kirch, 222 Wis. 2d 598, 602, 587 N.W.2d 919 (Ct. App. 1998).

By the Court. — Order affirmed.

       We note that pursuant to 1999 Wis. Act 150, effective January 1, 2001, Wis. Stat. ch. 66 was reorganized and renumbered between the 1997-98 version of the Wisconsin Statutes and the 1999-2000 version. Because the record shows that the circuit court and the parties relied upon the 1999-2000 version, we will refer to the 1999-2000 version.

       A second Petition for Incorporation was filed with the Sheboygan County Circuit Court prior to the DOA's dismissal on February 14, 2000, of the first petition. The second petition was voluntarily withdrawn on March 4, 2000.

       We note that the date the DOA dismissed the prior petition was February 14, 2000. The parties did not dispute the fact that February 14, 2000, triggered the running of the one-year delay.

       The filing date was September 28, 2000, approximately seven months after the dismissal of the first petition.

       Wisconsin Stat. § 66.0205 addresses the standards to be applied by the circuit court and provides in relevant part:
      Before referring the incorporation petition as provided in s. 66.0203(2) to the department, the court shall determine whether the petition meets the formal and signature requirements and shall further find that the [minimum requirements of area and resident population] are met.


author: ROGGENSACK, J.

text:
    In re the Attorney Fees in Xiaoxia Yu v. Jiayou Zhang: Jiayou Zhang, Appellant, v. Xiaoxia Yu, Respondent.
    Court of Appeals

      No. 00-3237.

      Submitted on briefs June 11, 2001.

    Decided October 11, 2001.

    2001 WI App 267
    (Also reported in 637 N.W.2d 754.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jiayou Zhang, pro se.
    On behalf of the appellant-respondent, the cause was submitted on the brief of Linda Roberson and Christine L. Taylor of Balisle & Roberson, S.C. of Madison.
    Before Vergeront, PJ., Roggensack and Lundsten, JJ.
   ROGGENSACK, J.

¶ 1. Jiayou Zhang appeals the circuit court's order requiring him to pay a contribution to Xiaoxia Yu's attorney fees. Yu incurred the fees in Zhang's prior unsuccessful appeal, where we decided that all but one of the issues he raised were frivolous. Because we conclude that the circuit court had the authority and acted within its discretion by awarding a reasonable contribution to Yu's appellate attorney fees based on Zhang's continuing to engage in overtrial, we affirm.

BACKGROUND

¶ 2. The circuit court divorced Yu and Zhang on July 15, 1996. In the divorce judgment the circuit court stated that Zhang had "committed acts of over trial. . . contributing to increased expenses for the guardian ad litem and [Yu's] legal fees . . . ." Zhang appealed and we affirmed.

¶ 3. In September 1996 and August 1997, Yu and Zhang were again before the court to resolve various motions for contempt, each party claiming that the other had failed to comply with various provisions of the divorce judgment. The conflict persisted into 1998, when Zhang twice moved for a reduction in maintenance. Yu countered with a motion to increase maintenance and to hold Zhang in contempt. The court commissioner ordered all pending motions consolidated for a December 1998 hearing.

¶ 4. Yu and Zhang filed extensive pre-hearing motions. Zhang sought: (1) a finding of contempt based on Yu's alleged false charges against him; (2) a finding of contempt based on Yu's alleged lies under oath; (3) a finding of contempt based on Yu's alleged failure to deliver certain school photos of the children; (4) a change from joint custody to sole legal custody; and (5) a $1,000 "family property payment" award from Yu to Zhang. The family court commissioner described the state of the record at the time of the hearing as follows:

Dr. Zhang's primary motion was a revision of maintenance .... His other motion... requested a court order on eight different issues.... Ms. Yu's motions were: (1) to increase maintenance; (2) to establish appropriate parameters for "substantial change in circumstances" to prevent respondent from filing continuous motions regarding reduction in maintenance; and (3) an order requiring respondent to notify petitioner of certain events which may occur in his life... .

¶ 5. After the hearing, the family court commissioner denied all of Zhang's motions, granted Yu's request for an increase in maintenance and found Zhang in contempt for failing to comply with the judgment as it relates to life insurance. In connection with the contempt finding, the court commissioner also ordered Zhang to pay $150 as a contribution toward Yu's fees.

¶ 6. In response to the court commissioner's decision, Zhang filed a demand for a trial de novo, by jury. The circuit court set a de novo hearing and denied the request for a jury trial, explaining that there is no right to a jury trial in connection with a family court matter. Zhang appealed the circuit court's denial of a jury trial, which appeal we dismissed because it was taken from a nonfinal order. See Wis. Stat. § 808.03(1) (1999-2000).

¶ 7. After the de novo review, the circuit court made substantially the same decisions as had the family court commissioner, including an increase in maintenance and a finding of contempt against Zhang. The circuit court took the additional step of assessing Zhang $350 as a contribution to Yu's attorney fees for what it characterized as Zhang's "relitigation" of two previously decided issues. The court also discussed the larger picture of the parties' litigation practices:

This divorce action has given rise to almost constant litigation since the original judgment was entered .... In all, the most recent round of litigation raised 25 issues for the court to resolve... . This pattern of overlitigation existed and was commented upon by this court in [the judgment of divorce].

The circuit court's order included the following warning: "Any unjustified continuation of litigation hostilities or overlitigation will result in actual reasonable attorneys fees being assessed against the offending party."

¶ 8. Zhang immediately appealed. Yu's attorney responded to Zhang's appeal by filing, a motion for fees with the circuit court. The motion invoked the circuit court's warning that further overlitigation would result in the assessment of fees, and it requested "that the Court order [Zhang] to pay actual reasonable attorneys fees incurred in responding to this most recent appeal." However, the record was forwarded to the court of appeals before the circuit court could hear Yu's motion.

¶ 9. Before this court, Yu pursued fees under Wis. Stat. § 809.25(3), arguing that the appeal was frivolous. We affirmed the circuit court's order in all respects, and we also concluded that:

We cannot award fees under Wis. Stat. Rule 809.25(3) (a) unless "the entire appeal is frivolous." See Manor Enterprises, Inc. v. Vivid, Inc., 228 Wis. 2d 382, 403, 596 N.W.2d 828 (Ct. App. 1999). Here, although the bulk of Zhang's appeal frivolously attempts to challenge credibility determinations and other factual findings which were supported by Yu's testimony, we conclude that there is arguable merit to his claim that the maintenance award was inequitable. We therefore decline to award attorney fees, although we emphasize that nothing in this order should be taken to undermine the circuit court's authority to award attorney fees in the future on an issue-by-issue basis.

Yu v. Zhang, No. 99-1990, unpublished slip op. at ¶ 8 (Wis. Ct. App. Apr. 27, 2000) (per curiam).

¶ 10. Once the case file returned to the circuit court, Yu again moved for an award of fees relating to Zhang's appeal. After a full hearing, the circuit court granted Yu's motion, in part. The circuit court interpreted our statement, quoted above, that it retained authority "to award attorney fees in the future on an issue-by-issue basis" as a directive that it could consider a motion for fees relating to the appeal. The circuit court then concluded:

The overlitigation of this case by [Zhang] has been patent and criticized by this court at every turn....
After warning both parties that "[a]ny unjustified continuation of litigation hostilities or overlitigation will result in actual reasonable attorneys fees being assessed against the offending party," [Zhang] nonetheless pursued an appeal, the bulk of which was later determined by the court of appeals to be frivolous. I now find that respondent has continued to engage in a pattern of overlitigation and frivolous appeals of issues he should have known were without arguable merit. I find that the award of reasonable attorneys fees incurred [in] connection with the issues frivolously appealed by respondent is necessary to reduce or eliminate future overlitigation between these parties, thereby finally separating their affairs and reducing the emotional and financial toll such litigation has had upon petitioner. Respondent, however, should not be penalized from pursuing his legal rights on arguably meritorious claims. Therefore, I award petitioner 50% of her attorneys fees incurred in connection with respondent's appeal of this court's June 17, 1999 order.

Based on that reasoning, the circuit court ordered Zhang to pay Yu's attorney $3,054.75 - half of the itemized appellate fees. Zhang appeals, contending that a circuit court has no authority to award fees incurred in an appeal, due to overtrial.

DISCUSSION

Standard of Review.

¶ 11. The initial question of whether a circuit court has the inherent authority to award fees for overtrial related to an appeal is a question of law that we review de novo. See W.W.W. v. M.C.S., 185 Wis. 2d 468, 483, 518 N.W.2d 285, 289-90 (Ct. App. 1994). However, whether unreasonably excessive litigation occurred resulting in overtrial is a mixed question of fact and law. See Ondrasek v. Ondrasek, 126 Wis. 2d 469, 483-84, 377 N.W.2d 190, 196 (Ct. App. 1985). Whether excessive litigation occurred is a question of historic fact to be determined by the circuit court. We will not reverse that determination unless it is clearly erroneous. See Wis. Stat. § 805.17; Reget v. Paige, 2001 WI App 73, ¶ 11, 242 Wis. 2d 278, 288, 626 N.W.2d 302, 308. Whether the facts as found constitute unreasonably excessive litigation resulting in overtrial is a question of law. See Randall v. Randall, 2000 WI App 98, ¶¶ 24-25, 235 Wis. 2d 1, 20-21, 612 N.W.2d 737, 745.

¶ 12. When the circuit court determines that overtrial has occurred, the decision about whether to award a contribution to attorney fees is discretionary. Johnson v. Johnson, 199 Wis. 2d 367, 377, 545 N.W.2d 239, 243 (Ct. App. 1996). Accordingly, this court reviews both the decision to award fees and the determination of the reasonableness of the fees under the erroneous exercise of discretion standard. Ondrasek, 126 Wis. 2d at 483, 377 N.W.2d at 196; see also Bisone v. Bisone, 165 Wis. 2d 114, 123-24, 477 N.W.2d 59, 62 (Ct. App. 1991) (addressing statutory fee award).

The Overtrial Doctrine.

¶ 13. Overtrial is a doctrine developed in family law cases that may be invoked when one party's unreasonable approach to litigation causes the other party to incur extra and unnecessary fees. Ondrasek, 126 Wis. 2d at 484, 377 N.W.2d at 196. It may also involve abuse of judicial resources through the unnecessary over-utilization of those resources. Id. A party's approach to litigation is unreasonable if it results in unnecessary proceedings or unnecessarily protracted proceedings, together with attendant preparation time. Id. at 483-84, 377 N.W.2d at 196. A circuit court may sanction a party who has engaged in overtrial by ordering that party to pay the opposing party's attorney fees. Id. at 483, 377 N.W.2d at 195-96. A sanction furthers two objectives, providing compensation to the overtrial victim for fees unnecessarily incurred, Johnson, 199 Wis. 2d at 377, 545 N.W.2d at 243, and deterring unnecessary use of judicial resources. Ondrasek, 126 Wis. 2d at 484, 377 N.W.2d at 196.

1. Circuit courts inherent authority.

¶ 14. Zhang contends that a circuit court's authority to sanction a party for overtrial is limited to awards of fees related to proceedings in the circuit court. We disagree. Courts have broad inherent powers to manage civil litigation. See Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805 (1995). Courts must be able to effectively control the cases over which they have jurisdiction, both at the circuit court level and on appeal. See Robert J. Martineau, Frivolous Appeals: The Uncertain Federal Response, 1984 Duke L.J. 845. We have held that the power to award fees may arise from a circuit court's inherent authority to preserve the judicial system's effectiveness. See Ondrasek, 126 Wis. 2d at 484, 377 N.W.2d at 196. Additionally, we have held that a circuit court has inherent authority to enforce its own orders by constructing remedies that promote compliance, W.W.W., 185 Wis. 2d at 485, 518 N.W.2d at 291, and sanctions may constitute such a remedy. However, when considering sanctions based on inherent authority, a court must assure that the due process guarantees of notice and an opportunity to be heard are observed. Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-67 (1980).

¶ 15. The first published Wisconsin case specifically mentioning the common law doctrine of overtrial is Martin v. Martin, 46 Wis. 2d 218, 174 N.W.2d 468 (1970), overruled on other grounds, O'Connor v. O'Connor, 48 Wis. 2d 535, 541, 180 N.W.2d 735, 739 (1970). In Martin, the circuit court ordered the defendant to pay the plaintiff $1500 for his conduct during circuit court proceedings and $800 for actions taken on appeal. Martin, 46 Wis. 2d at 229, 174 N.W.2d at 474. The Wisconsin Supreme Court affirmed the award of fees based on the circuit court findings that one party had subjected the other party and the court to four needless days of trial and attendant preparation and that the defendant had taken a "dubious" appeal, which, although ultimately withdrawn, necessitated considerable preparation time. Id. at 228-29, 174 N.W.2d at 474. Although Martin involved an assessment of fees for actions taken at the appellate level, the precise question on review was whether the fees were excessive, not whether the circuit court had the authority to order the fees for the appeal. However, it is informative to note how the supreme court reasoned in regard to the entire award:

It is obvious to us that the trial court was of the belief that the plaintiff-wife was put to a considerable portion of her attorney's fees liability because of the nature in which the defendant pursued the litigation. We believe that this element together with others was a fair basis for the fixing of the defendant's contribution to attorney's fees.

Id. at 229, 174 N.W.2d at 474. Furthermore, in Beaupre v. Airriess, 208 Wis. 2d 238, 251-52, 560 N.W.2d 285, 291 (Ct. App. 1997), we acknowledged that the circuit court has statutory authority to determine an amount of attorney fees to be awarded to a party for an appeal. Therefore, the supreme court and the legislature have recognized that there are times when a contribution to fees for the appeal of a family law matter may be assessed by a circuit court.

¶ 16. Here, we concluded that all but one of the issues raised by Zhang on his previous appeal were frivolous, and Yu sought fees as a sanction for what she alleged was Zhang's overtrial of the appeal. As we have noted, the circuit court has inherent authority to manage civil litigation within its jurisdiction, to preserve the effectiveness of the judicial system and to enforce compliance with its orders fashioned to prevent over-trial. However, before a judicial determination on Yu's allegation of overtrial could be made, Zhang had a right to notice and an opportunity to be heard. Roadway Express, 447 U.S. at 767. We recognize that the circuit court is in the best position to conduct such a hearing. Therefore, we conclude that when we have issued an opinion stating that a significant portion of the issues appealed in a family law matter are frivolous, that provides a necessary factor for the circuit court to hold a hearing on an allegation of overtrial, if such a motion is presented to it. There the circuit court will make findings of fact and conclusions of law relative to the motion and exercise its discretion to sanction a party, if the circuit court concludes a sanction is warranted.

2. Exercise of circuit court discretion.

¶ 17. We will not reverse an award of fees for overtrial unless the circuit court erroneously exercised its discretion. Ondrasek, 126 Wis. 2d at 483, 377 N.W.2d at 196. Therefore, we review whether the court examined the relevant facts, applied the correct standard of law and came to a conclusion a reasonable court could reach. Krebs v. Krebs, 148 Wis. 2d 51, 55, 435 N.W.2d 240, 242 (1989).

¶ 18. The circuit court relied on two factors in making its award: (1) Zhang's documented pattern of overlitigation which we concluded continued on his previous appeal because "the bulk of Zhang's appeal frivolously attempts to challenge credibility determinations and other factual findings," and (2) the need to enforce its own order through the fee award, which was "necessary to reduce or eliminate future overlitigation between these parties."

¶ 19. The court's award of fees for overtrial is consistent with the policy underlying fee awards approved in prior appellate cases. Zhang's appeal of issues lacking arguable merit unnecessarily and unfairly added to the time and expense required for Yu's attorney to respond to his appeal. It also violated the circuit court's order and wasted appellate judicial resources. This court has no ability to control the number of cases it must hear, as most litigants have a statutory right to appeal. Wis. Stat. § 808.03(1). Its workload has grown much faster than the resources available to meet it. For example, between 1979, this court's first full year of appeals, and the end of 2000, it has had a 98% increase in its workload and only a 33% increase in appellate judicial positions to decide those cases. Appealing frivolous issues unreasonably overlitigates the appeal and misuses the resources of this court.

¶ 20. Accordingly, we conclude that the circuit court examined the relevant facts, both in regard to the ongoing pattern of overtrial before it and our directive about the nature of the issues appealed; it applied the correct legal standard; and it came to a conclusion a reasonable court could reach. Accordingly, it properly exercised its discretion when it awarded fees to Yu.

¶ 21. Zhang contends there is a statutory roadblock to the circuit court's ordering him to pay fees related to an appeal. He directs our attention to Wis. Stat. § 809.25(3) and to our own conclusion (in Case No. 99-1990) that we could not award fees under § 809.25(3). He also contends that if a circuit court is permitted to award fees for appeal on an overtrial theory in a case where the court of appeals denied a motion for fees under § 809.25(3), the circuit court would be effectively overruling the court of appeals. We disagree.

¶ 22. First, as discussed above, overtrial is a common law doctrine which arises from the court's inherent authority to manage the family law cases over which it has jurisdiction. Second, the circuit court found that by pursuing multiple issues on appeal that lacked arguable merit, Zhang had continued a pattern of overtrial in violation of the circuit court's order. Third, we conclude that affirming the order does not create an impermissible conflict with Wis. Stat. § 809.25(3). Section 809.25(3) addresses the entirety of the appeal. Manor Enterprises, 228 Wis. 2d at 402-03, 596 N.W.2d at 837. Here, the circuit court's award of fees was a carefully measured action directed only at the issues which violated its order. For example, in recognition of this court's conclusion that Zhang had identified one issue with arguable merit, the circuit court awarded Yu only half of the fees that it determined were otherwise reasonable expenditures for the appeal.

¶ 23. Zhang also contends that the itemized statement of fees presented by Yu's attorney is "not dependable." A circuit court must make a determination about the reasonableness of the fees awarded in an overtrial situation. Johnson, 199 Wis. 2d at 377-78, 545 N.W.2d at 243. Here, the court determined that the claimed fees and expenses were "reasonable in amount for an appeal of this nature" and that "a concerted effort is apparent on the face of the bill to do the work necessary to respond to [Zhang's] appeal using lower-priced paralegals, clerks and other employees . . . ." Therefore, we conclude the circuit court properly exercised its discretion in determining the amount of fees it awarded.

Fees Related to this Appeal.

¶ 24. Both parties have argued that they are entitled to costs and fees related to this appeal. Yu argues that she should be awarded fees to compensate her for the cost of defending her right to fees under the circuit court's order. However, this case presented an issue of first impression, and although Zhang did not prevail, his appeal had arguable merit. Therefore, there is no need for the circuit court to conduct further proceedings regarding overtrial in this court.

CONCLUSION

¶ 25. Because we conclude that the circuit court had the authority and acted within its discretion by awarding a reasonable contribution to Yu's appellate attorney fees based on Zhang's continuing to engage in overtrial, we affirm.

By the Court. — Order affirmed.

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

        Beaupre v. Airriess, 208 Wis. 2d 238, 560 N.W.2d 285 (Ct. App. 1997), did not involve overtrial or attorney fees relating to such a theory.

       Published court statistics for 1979 show a docket of 2,792 cases pending, with twelve judges to decide them. In 2000, there were 5,531 cases pending, with sixteen judges to decide them.

       There is nothing unusual about a circuit court determining the reasonableness of attorney fees related to an appeal. Even where we assess fees under Wis. Stat. § 809.25(3) after concluding that an appeal is frivolous, we remand the case to the circuit court for a determination of fees.


author: CURLEY, J.

text:
    Jeanette Ocasio, Plaintiff-Appellant, v. Froedtert Memorial Lutheran Hospital, Defendant-Respondent, Michael Kefer, M.D., Defendant, ABC Insurance, DEF Insurance, GHI Insurance, JKL Insurance, and Wisconsin Patients Compensation Fund, Defendants-Respondents, Medical College of Wisconsin and Gary L. Swart, M.D., Defendants.
    Court of Appeals

      No. 00-3056.

      Submitted on briefs September 4, 2001.

    Decided October 16, 2001.

    2001 WI App 264
    (Also reported in 637 N.W.2d 459.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Thomas A. Ogorchok of Miller & Ogorchock, S.C., of Milwaukee.
    On behalf of the defendants-respondents Froedtert Memorial Lutheran Hospital and Wisconsin Patients Compensation Fund (as its interests relate to Froedtert Memorial Lutheran Hospital), the cause was submitted on the brief of Wayne Van Ert and Jennifer A. Slater Carlson of Otjen, Van Ert, Lieb & Weir, S.C., of Milwaukee.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review granted 01-29-02.

   CURLEY, J.

¶ 1. Jeanette Ocasio appeals from the circuit court's judgment dismissing her medical malpractice action. Ocasio argues that the trial court erred in its ruling dismissing her action because: (1) the requirement in Wis. Stat. § 655.44(5) (1999-2000) that the mediation period expire before filing a medical malpractice action is merely directory; (2) that any problem with her premature filing was rectified because her amended pleadings supplanted her original pleadings; and, in any event, (3) the defendants waived any jurisdictional objections. We conclude that when a claimant has filed for mediation pursuant to Wis. Stat. § 655.44, the expiration of the mediation period is a condition precedent to the commencement of a medical malpractice action. We also determine that Ocasio's filing of an amended complaint after expiration of the mediation period did not rectify the problem because an action never properly commenced cannot be amended. Finally, because there can be no waiver of a court's lack of competency to proceed, there was no waiver. We affirm the trial court's decision.

I. Background.

¶ 2. Ocasio was treated at Froedtert Memorial Lutheran Hospital on October 17, 1996. Ocasio alleges that she sustained an injury to her arm after a nurse injected her arm with Benadryl, an antihistamine used to combat allergic symptoms including itching. Pursuant to the provisions of Chapter 655, Ocasio mailed a request for mediation to the director of state courts by registered mail on October 8, 1999.

¶ 3. However, Ocasio also filed a summons and complaint in the circuit court on October 18, 1999. On February 4, 2000, Froedtert filed an answer to the complaint. Ocasio then filed an amended summons and complaint on February 8, 2000, which Froedtert answered on February 28, 2000. Froedtert made no jurisdictional challenges in either of its responsive pleadings.

¶ 4. On March 17, 2000, Froedtert's co-defendant, the Medical College of Wisconsin, filed a motion to dismiss. The motion alleged that Ocasio failed to comply with Wis. Stat. § 655.44(5), which precludes the commencement of a medical malpractice action until the expiration of the statutory mediation period under Wis. Stat. § 655.465(7). Froedtert joined the motion to dismiss on March 28, 2000.

¶ 5. The circuit court ultimately ruled that it lacked subject matter jurisdiction over the action due to Ocasio's failure to comply with Chapter 655. The circuit court also concluded that Ocasio's amended complaint was a nullity because the original action was never properly commenced. Therefore, Ocasio's cause of action was dismissed. Ocasio then filed a motion for reconsideration which was denied.

II. Analysis.

A. Wisconsin Stat. § 655.44(5)'s requirement is mandatory.

¶ 6. Froedtert submits that, pursuant to Wis. Stat. § 655.44(5), the circuit court must dismiss an action for medical malpractice when the complaint is filed prior to expiration of the period for mediation as required by Wis. Stat. § 655.465(7). Ocasio argues that § 655.44(5) is merely directory, not mandatory. Accordingly, we must resolve the question of whether Ocasio's premature filing deprived the circuit court of competency to proceed. Cf. Eby v. Kozarek, 153 Wis. 2d 75, 78-79, 450 N.W.2d 249 (1990) (supreme court addressed "whether the 15 day time period for requesting mediation under sec. 655.445 [ ] was mandatory such that [an] untimely request deprived the trial court of competency to proceed").

¶ 7. "Whether a statute is mandatory or directory is a question of statutory interpretation." Id. at 79. The meaning of a statute is a question of law, which we review de novo. Schmidt v. Wisconsin Employe Trust Funds Bd., 153 Wis. 2d 35, 41, 449 N.W.2d 268 (1990). "On any question of statutory construction the initial inquiry is to the plain meaning of the statute." Id. "If the statute is unambiguous, resort to judicial rules of interpretation and construction is not permitted, and the words of the statute must be given their obvious and intended meaning." Id. If and only if the language of the statute does not clearly or unambiguously set forth the legislative intent, will this court construe the statute so as to ascertain and carry out the legislative intent. Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519 (1996). If the language employed is clear and unambiguous, it is conclusive of legislative intent. Cemetery Servs., Inc. v. Dep't of Regulation & Licensing, 221 Wis. 2d 817, 825, 586 N.W.2d 191 (Ct. App. 1998).

¶ 8. Ocasio contends that the requirement of Wis. Stat. § 655.44(5) is merely directory, and, therefore, the circuit court did not lose competency to proceed when her action was prematurely filed before expiration of the mediation period under Wis. Stat. § 655.465(7). We disagree. The language of the statute is unambiguous and indicates that expiration of the mediation period is a precondition to the commencement of a medical malpractice action under Chapter 655.

¶ 9. In 1985, the legislature adopted the present mediation system for medical practice actions under Chapter 655. See Schulz v. Nienhuis, 152 Wis. 2d 434, 439, 448 N.W.2d 655 (1989). In Eby v. Kozarek, 153 Wis. 2d 75, 450 N.W.2d 249 (1990), the supreme court explained the mediation statutes in question:

The current statutes provide two alternatives for pursuing redress. Under sec. 655.44(1), an injured patient may file a request for mediation with the Wisconsin Patients Compensation.Panel rather than file a lawsuit. Once the request has been filed, the patient may not commence a court action until the mediation period under sec. 655.465(7) has expired. A second alternative is provided by sec. 655.445, which provides that a person may commence a lawsuit in the usual manner. Section 655.445(1) then provides that a request for mediation shall be filed within 15 days of filing the action in court.

Id. at 82 (citations omitted). The Eby court dealt exclusively with the latter option under Wis. Stat. § 655.445(1). Here, Ocasio chose to file the request for mediation before filing a lawsuit. Therefore, Wis. Stat. §§ 655.44(5) and 655.465(7) control.

¶ 10. Ocasio mailed her request for mediation on October 8, 1999. Section 655.465(7) states that "[t]he period for mediation shall expire ... 93 days after the date of mailing of the request to the director of state courts if sent by registered mail." Therefore, the mediation period expired on January 9, 2000. Despite the fact that § 655.44(5) states that "no court action may be commenced. . . until the expiration of the mediation period under s. 655.465(7)," Ocasio filed her summons and complaint during the mediation period, on October 18, 1999. Thus, she violated the statute's prohibition against bringing suit during the mediation period.

¶ 11. The supreme court has previously stated that a number of factors must be examined in determining whether a statutory provision is mandatory or directory. State v. Rosen, 72 Wis. 2d 200, 207, 240 N.W.2d 168 (1976). "These include the objectives sought to be accomplished by the statute, its history, the consequences which would follow from the alternative interpretations, and whether a penalty is imposed for its violation." Id. (citation omitted). Further, in determining whether a statute is directory or mandatory, we must determine whether there is a substantial reason why the legislature limited the period for filing medical malpractice actions until after expiration of the mediation period. See State v. Indus. Comm'n, 233 Wis. 461, 466-67, 289 N.W. 769 (1940) (stating that where there is no substantial reason why the thing required to be done by statute may not be done at another time, the courts will deem the statute directory).

¶ 12. Here, a substantial reason exists for prohibiting a lawsuit from being filed during the statutory mediation period. "The period for mediation under the statutes [ ] seems to be a statutory 'cooling off period, apparently unrelated to whether a mediation session occurs during that period." Schulz, 152 Wis. 2d at 441. The "intent of the statutory scheme is to interpose no more than a 90-day delay in the litigation process." Bertorello v. St. Joseph's Hosp. of Marshfield, 685 F. Supp. 192, 195 (W.D. Wis. 1988). "Thus litigation cannot proceed until the statutory mediation period ends." Schulz, 152 Wis. 2d at 441.

¶ 13. Additionally, one of the primary objectives of Chapter 655 "is to 'weed out' frivolous claims and provide a means whereby persons justly entitled to compensation can secure prompt disposition of their claims." Kasbaum v. Lucia, 127 Wis. 2d 15, 21, 377 N.W.2d 183 (Ct. App. 1985). Chapter 655, enacted in 1975, "established an exclusive procedure for the prosecution of malpractice claims against a health care provider." Rineck v. Johnson, 155 Wis. 2d 659, 665, 456 N.W.2d 336 (1990) (citation omitted), overruled on other grounds by Chang v. State Farm Mut. Auto Ins., 182 Wis. 2d 549, 567, 514 N.W.2d 399 (1994). "Chapter 655 sets tort claims produced by medical malpractice apart from other tort claims, and parties are conclusively presumed to be bound by the provisions of the chapter. . . ." Rineck, 155 Wis. 2d at 665. These statutes addressed specific concerns:

The legislature cited a sudden increase in the number of malpractice suits, in the size of awards, and in malpractice insurance premiums, and identified several impending dangers: increased health care costs, the prescription of elaborate "defensive" medical procedures, the unavaila-bility of certain hazardous services and the possibility that physicians would curtail their practices.

State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 508, 261 N.W.2d 434 (1978).

¶ 14. The language of § 655.44(5) clearly and unambiguously prohibits the filing of a medical malpractice action until after expiration of the mediation period. After examining the objectives sought to be accomplished by the mediation statues, as well as the history of Chapter 655, we conclude that §§ 655.44(5) and 655.465(7) create a mandatory "cooling off' period during which time no litigation may occur. This "cooling off' period is necessary to facilitate open communication and settlement without the pressure and adversarial nature of litigation, furthering the legislative objectives of weeding out frivolous claims, reaching settlement without trial, and securing the prompt disposition of valid claims.

¶ 15. Further, "[i]f an action may not be brought except upon the happening of an event, then the occurrence of that event is a condition precedent to commencement of the action." Siemering v. Siemering, 95 Wis. 2d 111, 114, 288 N.W.2d 881 (Ct. App. 1980). "A condition precedent limits 'the time within which a certain prescribed act, necessary to the enforcement of [the plaintiffs] cause of action, shall be done.'" Snopek v. Lakeland Med. Ctr., 223 Wis. 2d 288, 295, 588 N.W.2d 19 (1999) (citation omitted) (alteration in original). Here, expiration of the mediation period under § 655.465(7) is a condition precedent to the commencement of a medical malpractice action where the claimant has filed for mediation pursuant to § 655.44(1).

¶ 16. This statutory scheme is analogous to the notice of claim statutes. One such statute is Wis. Stat. § 893.80. Several cases have addressed the condition precedent found in § 893.80 and its predecessor, Wis. Stat. § 59.76. In Snopek, the plaintiff filed a medical malpractice action against a hospital owned by Walworth County. Snopek, 223 Wis. 2d at 291. Because the plaintiff failed to give notice to the county within 120 days of the event giving rise to her claim, the supreme court held that "the notice of injury statute is a condition precedent," and, consequently, "[f]ailure of a party to fulfill the procedure . . . results in such party losing the right to proceed." Id. at 295. Similarly, in Colby v. Columbia County, 202 Wis. 2d 342, 550 N.W.2d 124 (1996), the supreme court held that a plaintiffs claim was not properly commenced:

[A] cause of action is not properly commenced when a plaintiff prematurely files a summons and complaint, without first complying with notice requirements such as those inscribed in Wis. Stat. § 893.80. Section 893.80 prohibited the commencement of the original action by Colby in this case, where suit was filed only two days after the statutory claim was filed....

Id. at 361-62.

¶ 17. In response, Ocasio asserts that this statutory "cooling off' period is similar to various time limits in the mediation statutes that have been held to be merely directory. See Eby, 153 Wis. 2d at 83 (holding that the fifteen-day time limitation for requesting mediation after filing an action is directory); Schulz, 152 Wis. 2d at 436 (holding that a claimant's failure to participate in a mediation session within the ninety-day time limitation does not require dismissal). However, in finding that strict adherence to the completion of mediation within the time frame was not required, the Schulz court addressed a number of practical concerns:

Moreover, strong practical reasons militate against reading the mediation statute as requiring dismissal of the lawsuit if a claimant does not participate in a mediation session within the statutory mediation period. A multitude of events could cause a mediation session to be delayed beyond the statutory period: illness or weather; fixing a date convenient for all parties; the need to appoint different mediators.

Id. at 443. Unlike these statutory time limits, the "cooling off period under §§ 655.44(5) and 655.465(7) do not involve similar concerns. The expiration of the mediation period is dependent upon only one factor - the passage of time. Weather, illness and compliance of the parties are not at issue.

¶ 18. Additionally, Schulz and Eby did not deal with a precondition to commencement of an action. Schulz dealt with the issue of whether a party was required to attend mediation under § 655.465 within the statutory period or else face dismissal of the lawsuit. Id. at 436. In concluding the requirement to attend mediation was merely directory, the supreme court reasoned:

When considering the provisions of chapter 655 and their interrelationship, we are hard pressed to find any statutory provisions supporting the defendants' interpretation that a claimant's failure to participate in a mediation session within a 90-day period requires dismissal of the lawsuit.... No statutory provisions state that a mediation session must have taken place during the statutory mediation period.

Id. at 442.

¶ 19. In Eby, the court dealt with the issue of whether the expiration of the fifteen-day time period to request mediation under § 655.445(1) deprived the trial court of competency to proceed. Eby, 153 Wis. 2d at 78-79. The court concluded that "[c]hapter 655. . . . does not explicitly provide that an action is invalidated if a request for mediation is not made within 15 days of the date the action was filed." Eby, 153 Wis. 2d at 81.

¶ 20. In contrast to the statutory time limits dealt with in those cases, the language of § 655.44(5) is explicit: "no court action may be commenced. .. until the expiration of the mediation period." The clear and unambiguous language of the statute is conclusive of the legislative intent to create a mandatory "cooling off' period where no litigation may take place. Giving the words of the statute their obvious and intended meaning, we conclude that expiration of the mediation period under § 655.465(7) is a condition precedent to the commencement of a medical malpractice action under ch. 655 where the claimant has filed a request for mediation under § 655.44. Accordingly, Ocasio's action was premature and cannot be maintained.

B. The amended complaint.

¶ 21. Next, Ocasio contends that the amended summons and complaint filed on February 8, 2000 related back to the original summons and complaint pursuant to Wis. Stat. § 802.09. Ocasio concludes that the amended pleadings establish a viable cause of action because they were filed after expiration of the mediation period and before running of the statute of limitations. We disagree.

¶ 22. This issue requires examination of both Wis. Stat. § 802.09, dealing with amended pleadings, as well as Wis. Stat. § 801.02, dealing with the commencement of an action. The interpretation and application of statutes presents questions of law which we review de novo. Archambault v. A-C Prod. Liab. Trust, 205 Wis. 2d 400, 403-04, 556 N.W.2d 392 (Ct. App. 1996).

¶ 23. Generally, "the circuit court acquires subject matter jurisdiction or competency to act when a properly subscribed summons and complaint is filed with the court." McMillan-Warner Mut. Ins. v. Kauffman, 159 Wis. 2d 588, 594, 465 N.W.2d 201 (Ct. App. 1990). Section 801.02(1) states in relevant part: "A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court . ..." Id. However, "a cause of action is not properly commenced when a plaintiff prematurely files a summons and complaint." Colby, 202 Wis. 2d at 361.

¶ 24. We have concluded that expiration of the mediation period was a condition precedent to the commencement of Ocasio's action. "That condition not having been met, the action was never commenced." Siemering, 95 Wis. 2d at 115. Therefore, because Ocasio filed her medical malpractice action prematurely, the original pleading was a nullity, and could not be amended. Id. ("A pleading in an action never commenced cannot be amended.").

C. Waiver.

¶ 25. Finally, Ocasio contends that Froedtert waived this jurisdictional defense at the circuit court level because it failed to raise the issue by motion prior to filing a responsive pleading, or in its responsive pleadings. Again, we are not persuaded. We agree with the circuit court's ruling that a lack of competency is not subject to waiver and dismissal of the action was required.

¶ 26. "Whether a trial court lacks [competency] is a question of law, which we review de novo." State v. Schroeder, 224 Wis. 2d 706, 711, 593 N.W.2d 76 (Ct. App. 1999). The consequence of failing to comply with a mandatory statutory provision has been described in various ways: "Wisconsin appellate courts have previously held that failure to comply with mandatory time limits . . . may result in the loss of the circuit court's competency to proceed," State v. April O., 2000 WI App 70, ¶ 5, 233 Wis. 2d 663, 607 N.W.2d 927 (emphasis added); "As the trial court determined, it had no [competency] in the case. The state no longer has a cause of action. Mandatory statutory time provisions have been regarded by this court as affecting the subject matter jurisdiction of a court." Rosen, 72 Wis. 2d at 209 (emphasis added).

¶ 27. Therefore, failure to comply with a mandatory statutory provision eliminates "the ability of a court to exercise its subject matter jurisdiction." State v. Dawn M., 189 Wis. 2d 480, 485, 526 N.W.2d 275 (Ct. App. 1994). Accordingly, the court loses the "power... to hear the kind of action brought," which "is called jurisdiction of the subject matter.'" Wis. Stat. § 801.04(1).

¶ 28. "[I]t has long been the rule that parties may waive or consent to a court's lack of personal jurisdiction, but not to its lack of subject matter jurisdiction. Green County, 162 Wis. 2d at 655. Wisconsin Stat. § 802.06(8)(c) states: "If it appears by motion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." "A court not only has the power to dismiss when it becomes aware of its lack of subject-matter jurisdiction but has the duty sua sponte to do so." Achtor v. Pewaukee Lake Sanitary Dist., 88 Wis. 2d 658, 664, 277 N.W.2d 778 (1979). Therefore, the circuit court properly dismissed Ocasio's medical malpractice action when it discovered, through defendant's motion to dismiss, that it lacked the power to exercise its subject matter jurisdiction, because Ocasio prematurely filed her action prior to expiration of the mediation period.

¶ 29. For all of the above stated reasons, we affirm the trial court's judgment dismissing Ocasio's medical malpractice action and denying her motion for reconsideration.

By the Court. — Judgment affirmed.

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

       The terms "competence" and "jurisdiction" have been used inconsistently by courts and commentators across the country. See Shopper Advertiser, Inc. v. Dep't of Revenue, 117 Wis. 2d 223, 236-40, 344 N.W.2d 115 (1984) (J. Abrahamson, concurring in part and dissenting in part). However, the terms are not synonymous.
      The Restatement (Second) of Conflicts uses "competence" to refer to the powers given to courts by the state. Restatement (seoond) of Conflict of Laws (1971), vol. 1, pp. 101-02. "Because a state acts through both its constitution and statutes, competence in this sense would include both personal and subject matter jurisdiction." Green County Dep't of Human Servs. v. H.N., 162 Wis. 2d 635, 656 n.17, 469 N.W.2d 845 (1991) (citations omitted). We have defined "competency to proceed" as the ability of a court to exercise its subject matter jurisdiction in regard to particular issues in specific cases. See State v. Dawn M., 189 Wis 2d 480, 485, 526 N.W.2d 275 (Ct. App. 1994).
      This case involves a loss of competency to proceed and not a loss of subject matter jurisdiction. See generally Eberhardy v. Wood County, 97 Wis.2d 654, 665-66, 294 N.W.2d 540 (Ct. App. 1980) (holding that courts are without the power to make determination to sterilize an incompetent individual because that power was not conferred by specific statute), aff'd by Eberhardy v. Wood County, 102 Wis.2d 539, 307 N.W.2d 881 (1981). However, as will be explained, this does not result in dissimilar consequences. See Green County, 162 Wis. 2d at 654 n.15.

       Wisconsin Stat. § 655.44(5) provides:
      Request for mediation prior to court action.
      (5) No COURT ACTION COMMENCED BEFORE MEDIATION. Except as provided in s. 655.445, no court action may be commenced unless a request for mediation has been filed under this section and until the expiration of the mediation period under s. 655.465(7).

       Wisconsin Stat. § 655.465(7) provides:
      Mediation panels; mediation period.
      (7) Mediation period. The period for mediation shall expire 90 days after the director of state courts receives a request for mediation if delivered in person or within 93 days after the date of mailing of the request to the director of state courts if sent by registered mail, or within a longer period agreed to by the claimant and all respondents and specified by them in writing for purposes of applying ss. 655.44(4) and (5) and 655.445(3).

       Wisconsin Stat. § 893.80 provides:
      Claims against governmental bodies or officers, agents or employees; notice of injury; limitation of damages and suits. (1) Except as provided in subs, (lg), (lm), (lp) and (8), no action may be brought or maintained against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employee of the corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:
      (a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served... .

       Wisconsin Stat. § 655.445 provides:
      Request for mediation in conjunction with court action.
      (1) Commencing action, bequest and fee. Beginning September 1, 1986, any person listed in s. 665.007 having a claim or a derivative claim under this chapter for bodily injury or death because of a tort or breach of contract based on professional services rendered or that should have been rendered by a health care provider shall, within 15 days after the date of filing an action in court, file a request for mediation.

       The statute of limitations, Wis. Stat. § 893.55, was tolled for the duration of the statutory mediation period plus thirty days. See Wis. Stat. § 655.44(4). Ocasio mailed her request for mediation on October 8,1999, nine days before expiration of the statute of limitations. Therefore, the statute of limitations ran on February 17, 2000.