author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Thomas E. Zablocki, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. Thomas E. Zablocki, Respondent.
    Supreme Court

      No. 00-0818-D.

      Filed October 30, 2001.

    2001 WI 115
    (Also reported in 635 N.W.2d 288.)

      ATTORNEY disciplinary proceeding.
   PER CURIAM.

¶ 1. Thomas E. Zablocki was admitted to the practice of law in Wisconsin in 1968 and resides in Greendale, Wisconsin. In 1995 Mr. Zablocki consented to a private reprimand from the Board of Attorneys Professional Responsibility (Board). On June 24, 1998, this court suspended Mr. Zablocki's license to practice law in Wisconsin for six months, effective August 10,1998, for various violations, including failure to maintain a client trust account, depositing client funds into personal checking accounts, diverting client funds for his own purposes, and failing to cooperate with the Board's investigation. See Disciplinary Proceedings Against Zablocki, 219 Wis. 2d 313, 579 N.W.2d 233 (1998). Mr. Zablocki's license remains suspended.

¶ 2. On March 21, 2000, the Board filed a complaint against Mr. Zablocki alleging professional misconduct in the course of his representation of a couple involved in a divorce proceeding. In May 1997 the wife had retained Mr. Zablocki to represent her in a contemplated divorce from her husband. The wife paid him $750. Mr. Zablocki commenced the divorce action in Milwaukee County Circuit Court on May 12, 1997. While the divorce was pending, the couple considered filing for bankruptcy. In the spring of 1998 they consulted with Mr. Zablocki, and he advised them it would be cheaper and easier if he were to represent them both in the bankruptcy proceedings. The couple decided to retain Mr. Zablocki to handle the bankruptcy case. The wife paid Mr. Zablocki $400 plus half of the filing fee, and the husband paid Mr. Zablocki at least $400.

¶ 3. Despite his imminent suspension from the practice of law, on or about July 20, 1998, Mr. Zablocki filed a Chapter 7 bankruptcy action on behalf of the couple jointly in the United States Bankruptcy Court for the Eastern District of Wisconsin. Although there was an obvious conflict of interest between Mr. Zablocki's representation of the wife against her husband in the divorce case and the representation of both the husband and wife in the bankruptcy case, Mr. Zablocki did not obtain the written consent of either the husband or wife to this arrangement. At no time did Mr. Zablocki notify the husband or wife of the fact that his license was to be suspended and that he would be unable to act as their attorney after that date. He also did not notify the bankruptcy trustee or bankruptcy court of his suspension and inability to act after August 10,1998, nor did he notify the branch of the Milwaukee County Circuit Court before which the divorce case was pending of his suspension and inability to act after August 10, 1998. Mr. Zablocki did not refund any portion of the fee the couple had paid him for the bankruptcy action.

¶ 4. The referee, Michael Ash, concluded, and this court agrees, that by representing the wife in the bankruptcy case when his representation was directly adverse to the husband and when his representation of the wife was materially limited by his responsibility to the husband, without obtaining written consent from each client, Mr. Zablocki violated SCR 20:1.7(a) and (b); by failing to notify either the husband or wife by certified mail of his suspension and by failing to notify both the divorce court and the bankruptcy court, before which cases were pending, of his suspension, Mr. Zablocki failed to properly and timely notify a client and two courts of the suspension of his law license and his inability to act in pending matters, he violated SCR 22.26(l)(a) and (b); by failing to refund the portion of the advance fee payment for the bankruptcy that he had not fully earned, he violated SCR 20:1.16(d); and by failing to keep complete records of trust account funds, he violated SCR 20:1.15(e).

¶ 5. Although Mr. Zablocki's license to practice law in Wisconsin has already been suspended and has not been reinstated, the actions described above constitute additional misconduct warranting an additional sanction. In order to impress upon him the seriousness of his misconduct, and in order to protect the public, the courts and the legal system from a possible repetition of the same misconduct, and to deter other attorneys from similar misconduct, this court concludes that a public reprimand is appropriate.

¶ 6. IT IS ORDERED that Thomas E. Zablocki is publicly reprimanded for his professional misconduct.

¶ 7. IT IS FURTHER ORDERED that Thomas E. Zablocki be required to pay all costs and expenses of this disciplinary proceeding. If the costs are not paid, and absent a showing to this court of his inability to pay the costs, the license of Thomas E. Zablocki to practice law in Wisconsin shall be suspended until further order of this court.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation (OLR) and the supreme court rules applicable to the lawyer regulation system were also revised. Since the conduct giving rise to the complaint occurred prior to October 1, 2000, the investigative body will be referred to as "the Board." References to supreme court rules will be to those in effect prior to October 1, 2000.

       SCR 20:1.7(a) and (b) provides:
      (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
      (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
      (2) each client consents in writing after consultation.
      (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
      (1) the lawyer reasonably believes the representation will not be adversely affected; and
      (2) the client consents in writing after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

       Former SCR 22.26(l)(a) and (b) provided:
      (l)(a) A disbarred or suspended attorney on or before the effective date of disbarment or suspension shall:
      1. Notify, by certified mail, all clients being represented in pending matters of the disbarment or suspension and consequent inability to act as an attorney after the effective date of the disbarment or suspension.
      2. Advise the clients to seek legal advice of the client's own choice elsewhere.
      (b) A disbarred or suspended attorney with a matter pending before a court or administrative agency shall promptly notify the court or administrative agency and the attorney for each party of the disbarment or suspension and consequent inability to act as an attorney after the effective date of the disbarment or suspension. The notice must identify the successor attorney or, if there is none at the time of the notice, state the place of residence of the client of the disbarred or suspended attorney.

       SCR 20:1.16(d) provides:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       SCR 20:1.15(e) provides:
      (e) Complete records of trust account funds and other trust property shall be kept by the lawyer and shall be preserved for a period of at least six years after termination of the representation. Complete records shall include: (i) a cash receipts journal, listing the sources and date of each receipt, (ii) a disbursements journal, listing the date and payee of each disbursement, with all disbursements being paid by check, (iii) a subsidiary ledger containing a separate page for each person or company for whom funds have been received in trust, showing the date and amount of each receipt, the date and amount of each disbursement, and any unexpended balance, (iv) a monthly schedule of the subsidiary ledger, indicating the balance of each client's account at the end of each month, (v) a determination of the cash balance (checkbook balance) at the end of each month, taken from the cash receipts and cash disbursement journals and a reconciliation of the cash balance (checkbook balance) with the balance indicated in the bank statement, and (vi) monthly statements, including canceled checks, vouchers or share drafts, and duplicate deposit slips. A record of all property other than cash which is held in trust for clients or third persons, as required by paragraph (a) hereof, shall also he maintained. All trust account records shall be deemed to have public aspects as related to the lawyer's fitness to practice.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Matthew O. Olaiya, Attorney at Law. Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Matthew O. Olaiya, Respondent.
    Supreme Court

      No. 00-3352-D.

      Filed October 30, 2001.

    2001 WI 116
    (Also reported in 635 N.W.2d 283.)

      ATTORNEY disciplinary proceeding.
   PER CURIAM.

¶ 1. We review the recommendation of the referee that the license of Attorney Matthew O. Olaiya to practice law in Wisconsin be suspended for six months for professional misconduct. That misconduct consists of abandoning the practice of law; failing to take steps to protect the interests of a client; failing to return an advance payment of a fee that has not been earned; failing to act with reasonable diligence and promptness in representing a client; failing to keep a client reasonably informed about the status of a matter; failing to cooperate with the investigation of the Board of Attorneys Professional Responsibility (Board) in the investigation of a grievance; failing to provide full and fair information regarding the circumstances pertaining to the alleged misconduct; failing to comply with reasonable requests for information; making a misrepresentation in a disclosure to the Board; and revealing information relating to the representation of a client without the client's consent. In addition to the license suspension, the referee recommended that Attorney Olaiya pay restitution to two clients and that he pay the costs of the proceeding.

¶ 2. We determine that the seriousness of Attorney Olaiya's professional misconduct warrants a six-month suspension of his license to practice law in Wisconsin and we adopt the referee's recommendations.

¶ 3. Attorney Olaiya was admitted to practice law in Wisconsin in 1984. The misconduct described herein occurred in connection with Attorney Olaiya's prolonged absence from the United States. On or about June 25, 1999, Attorney Olaiya left Wisconsin for an indefinite stay in Lagos, Nigeria, without prior notice to his clients. He thereafter closed his law office in August 1999, again, without prior notice to his clients. Attorney Olaiya apparently returned to Wisconsin briefly in December 1999, but departed the United States on January 24, 2000. Attorney Olaiya has not returned to Wisconsin and currently resides in Nigeria.

¶ 4. By April 2000, the Board had received three grievances from clients of Attorney Olaiya. A fourth grievance was filed against Attorney Olaiya on May 23, 2000.

¶ 5. In December 2000, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Olaiya alleging some fourteen separate violations of supreme court rules based on Attorney Olaiya's alleged professional misconduct with respect to four client matters. Attorney Olaiya filed an answer, which was later stricken for his failure to comply with a discovery order.

¶ 6. The first grievance involved a client who hired Attorney Olaiya to assist with obtaining a visa to enable the client's fiancee to enter the United States. The client paid Attorney Olaiya a $700 retainer. Attorney Olaiya filed the necessary documents but then told the client that he would be "on vacation" for several weeks. After Attorney Olaiya departed for Nigeria, the Department of Immigration and Naturalization Services (INS) returned the visa application to Attorney Olaiya's office indicating that it required some additional information before it could be processed. Attorney Olaiya did not advise his client of this development. He made no arrangements to have the work done. Several months later the client learned of the problem with the visa application and filed a grievance with the Board. Attorney Olaiya did not return the retainer fee.

¶ 7. Attorney Olaiya failed to respond to a letter from a Board staff investigator with respect to this client's case. He also failed to timely respond to a letter the Board staff sent to him by certified mail. He responded belatedly to the grievance in an e-mail message dated June 30, 2000, but his response did not address the specific allegations of misconduct. After being notified by the Board that his response was insufficient, Attorney Olaiya sent another e-mail message, maintaining that his initial response was adequate.

¶ 8. The second matter involved a client who hired Attorney Olaiya to file the necessary documentation to effectuate a change in the client's non-resident alien status. The client prepaid Attorney Olaiya $350 for this service. Attorney Olaiya filed the necessary documents and initially communicated with the client regarding the status of the matter. However, in mid-August 1999, the client learned that Attorney Olaiya had left the country, indefinitely. The client repeatedly tried to contact Attorney Olaiya regarding the status of his case, without success. Attorney Olaiya failed to respond to the client's messages and failed to comply with the client's request that Attorney Olaiya transfer the file to another attorney.

¶ 9. Attorney Olaiya failed to respond to a letter from a Board staff investigator regarding this grievance. He belatedly responded to this grievance in his e-mail message of June 30, 2000, but generally denied the client's allegations. Again, after being notified by the Board that his response to the grievance was insufficient, Attorney Olaiya sent a follow-up e-mail maintaining that his initial response was adequate.

¶ 10. The third matter involved a corporate client that hired Attorney Olaiya to assist a company employee with an immigration matter. The client directed Attorney Olaiya to take the steps necessary to permit the company's employee, a Mexican citizen, to remain lawfully in the United States and employed by the company. Specifically, Attorney Olaiya was directed to extend the employee's 1-94 authorization, to file a petition to extend the employee's status as a non-immigrant worker, and to help her obtain permanent resident status. Attorney Olaiya was also retained to file certain immigration documents on behalf of the employee's husband, also a Mexican citizen. The client paid Attorney Olaiya $2000 as partial prepayment for these legal services.

¶ 11. Attorney Olaiya failed to file any request to extend the employee's 1-94 authorization. He failed to respond to the Wisconsin Department of Workforce Development's (DWD) requests for information. Because of Attorney Olaiya's inaction, the DWD closed the file. Attorney Olaiya failed to inform his client that the file was closed due to his inaction. Instead, Attorney Olaiya asked DWD to reopen the file and, when the client requested a status report, Attorney Olaiya informed the client that the DWD had "not gotten" to the case. Attorney Olaiya also failed to respond to several other agency requests for information regarding this matter and failed to respond to the client's repeated inquiries regarding the status of the matter. Eventually the client filed a grievance.

¶ 12. Attorney Olaiya failed to respond to a letter from a Board staff investigator requesting a response to this client's grievance. Attorney Olaiya also failed to timely respond to a subsequent investigative letter sent by certified mail. In his e-mail .message to the Board dated June 30, 2000, Attorney Olaiya did not address the specific allegations of misconduct other than to generally deny any wrongdoing with respect to this client. Again, after being notified by the Board that his response to the grievance was insufficient, Attorney Olaiya sent a follow-up e-mail maintaining that his initial response was adequate.

¶ 13. The fourth matter involved a client who hired Attorney Olaiya to represent the client's sister with respect to her application for political asylum. The client paid Attorney Olaiya a $2500 retainer to provide representation at an asylum hearing scheduled for October 21, 1999, in the State of Minnesota. The client flew to Minnesota for the asylum hearing but no one appeared on the client's behalf and the hearing had to be canceled. Attorney Olaiya failed to respond to the client's follow-up telephone calls or to the client's request that Olaiya refund the retainer and reimburse the client's travel expenses. Attorney Olaiya did not return the retainer in this matter, nor did he reimburse the client for the travel expenses incurred traveling to the hearing.

¶ 14. By letter dated June 6, 2000, the Board notified Attorney Olaiya of the grievance filed in connection with this matter and requested a written response within twenty days. Attorney Olaiya responded in the June 30, 2000, e-mail message, claiming that he had performed all the services for which he was paid and claiming that the client was uncooperative, owed him money and had not responded to his calls or letters. The e-mail response did not address Attorney Olaiya's failure to appear at the hearing. Attorney Olaiya provided no verification for his claims that the client was uncooperative. After being notified by the Board that his response to the grievance was insufficient, Attorney Olaiya sent a follow-up e-mail message maintaining that his initial response was adequate.

¶ 15. Thereafter Attorney Olaiya failed to respond to the Board's discovery requests and failed to appear for his deposition although written notice was sent to him in Wisconsin and Nigeria. The Board filed a motion to compel Attorney Olaiya's compliance with discovery in this disciplinary proceeding.

¶ 16. Following a hearing on the motion to compel at which Attorney Olaiya did not appear, the referee entered an order requiring Attorney Olaiya to respond to outstanding discovery requests and to appear for his deposition. This order further advised Attorney Olaiya that his failure to comply with the order without good cause would result in the issuance of an order striking his answer and causing the issuance of findings of fact and conclusions of law and a recommendation based on the allegations in the complaint. Attorney Olaiya wholly failed to comply with the order.

¶ 17. Attorney Olaiya did not appear at the final scheduling conference on May 29, 2001. Accordingly, the referee issued an order striking the answer and issued findings of fact and conclusions of law consistent with the complaint.

¶ 18. The referee concluded that by abandoning his law practice and thereby failing to protect his clients' interests upon termination of representation with respect to the first and second client, and by failing to return the second client's advance payments of fees that had not been earned, Attorney Olaiya violated SCR 20:1.16(d).

¶ 19. The referee also concluded that by failing to notify the first, third, and fourth clients of various agency demands for further information and/or the need for revisions to filed documents, Attorney Olaiya violated SCR 20:1.3.

¶ 20. The referee also found that by failing to keep the first, second, and third clients reasonably informed regarding the status of their respective legal matters, Attorney Olaiya violated SCR 20:1.4(a).

¶ 21. The referee found further that by failing to cooperate with the Board's investigation of each of the four grievances Attorney Olaiya violated (former) SCR 21.03(4)

¶ 22. In addition, the referee found that by failing to provide full and fair information regarding the circumstances pertaining to the alleged misconduct in each of the four grievances, Attorney Olaiya violated (•former) SCR 22.07(2).

¶ 23. Finally the referee concluded that by causing the fourth client's file to be delivered to another attorney without the client's consent, Attorney Olaiya revealed information relating to the representation of a client without the client's consent in violation of SCR 20:1.6.

¶ 24. The referee then concluded that a six-month license suspension was appropriate. The referee also recommended that Attorney Olaiya pay restitution in the amount of $700 to the first client, reflecting the retainer paid by the client for representation with respect to the fiancée visa matter, as well as $2500 to the fourth client reflecting the retainer accepted for his work in the political asylum matter plus an additional $1000 for the travel expenses incurred by the client in connection with the hearing at which Attorney Olaiya failed to appear. The referee did not assess restitution with respect to the other two clients. The referee also recommended that Attorney Olaiya pay the costs of this proceeding.

¶ 25. We adopt the referee's findings of fact and conclusions of law and determine that to be the appropriate discipline for Attorney Olaiya's professional misconduct. We also hold that payment of the restitution shall be treated as a condition of the reinstatement of Attorney Olaiya's license. Attorney Olaiya's misconduct with respect to his handling of the four client matters and his failure to cooperate with the Board's investigation are serious failings warranting a suspension of his license. A six-month suspension of his license to practice law is appropriate discipline for his professional misconduct.

¶ 26. IT IS ORDERED that the license of Matthew O. Olaiya to practice law in Wisconsin is suspended for a period of six months, effective December 4, 2001.

¶ 27. IT IS FURTHER ORDERED that Matthew O. Olaiya comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 28. IT IS FURTHER ORDERED that Matthew O. Olaiya refund $700 to the first client, and that he refund $2500 to the fourth client. In addition, he shall reimburse the fourth client $1000 for travel expenses. If these refunds and reimbursement are not made within 60 days from the date of this order, the license of Matthew O. Olaiya to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 29. IT IS FURTHER ORDERED that within 60 days of the date of this order Matthew O. Olaiya pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Matthew O. Olaiya to practice law in Wisconsin shall remain suspended until further order of the court.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation (OLR) and the supreme court rules applicable to the lawyer regulation system were also revised. Since most of the conduct giving rise to the complaint occurred prior to October 1, 2000, the investigative body will be referred to as "the Board." However, the references to supreme court rules will be to those currently in effect unless specifically noted.

       Attorney Olaiya apparently commenced but failed to complete arrangements to have a Minnesota lawyer appear at the hearing. He sent an e-mail to a Minnesota attorney several months before the hearing asking if she accepted referrals. The attorney specifically requested that Attorney Olaiya contact her if he wished her to handle the matter. Months later the client's file was simply dropped off at the Minnesota attorney's office one day before the scheduled hearing.

       Indeed, the referee later found that the cancelled check and retainer agreement demonstrated that Attorney Olaiya's claim that this client owed Attorney Olaiya money was false and misleading.

       SCR 20:1.16(d) provides:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

       SCR 20:1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

       Former SCR 21.03(4) provided that "[e]very attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator."

       Former SCR 22.07(2) provided:
      During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.

       SCR 20:1.6 provides: Confidentiality of information
      (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d).
      (b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another.
      (c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
      (1) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services had been used;
      (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.
      (d) This rule does not prohibit a lawyer from revealing the name or identity of a client to comply with ss. 19.43 and 19.44, Stats. 1985-86, the code of ethics for public officials and employees.


author: ANN WALSH BRADLEY, J.

text:
    State of Wisconsin ex rel. Eugene Nichols, Petitioner, v. Jon Litscher, Secretary, Wisconsin Department of Corrections and Rick Hudson, Warden, North Fork Correctional Facility, Respondents.
    Supreme Court

      No. 00-0853-W.

      Oral argument September 14, 2001. —
    Decided November 6, 2001.

    2001 WI 119
    (Also reported in 635 N.W.2d 292.)

      For the petitioner there were briefs by Jeffrey O. Davis, Daniel J. La Fave and Quarles & Brady LLP, Milwaukee, and oral argument by Daniel J. La Fave.

    For the respondents the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Eugene Nichols, seeks reinstatement of his petition for review that was previously dismissed as untimely filed. He asserts that his petition should be deemed "filed" as of the date that he delivered it to prison authorities for mailing to this court. Although we do not adopt Nichols' definition of "filed," we nevertheless determine that the 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing. Accordingly, we grant Nichols' requested relief and reinstate his petition for review.

HH

¶ 2. The parties have agreed to the facts necessary to our decision in this case. Nichols is a prisoner convicted in Wisconsin who is incarcerated in the North Fork Correctional Facility ("North Fork") in Sayre, Oklahoma. On January 26, 2000, the court of appeals in an unpublished decision affirmed his conviction for battery by a prisoner. Nichols received a copy of the court of appeals decision on January 28. Wisconsin Stat. § 808.10 (1999-2000) states that a petition for review must be "filed in the supreme court within 30 days of the date of the decision of the court of appeals," making Nichols' petition for review due on February 25, 2000.

¶ 3. Nichols gave his petition for review to the North Fork librarian for copying on February 15, 2000, ten days before the petition's due date. In an affidavit, the librarian stated that prisoner copy requests normally take "between three and seven days" to fill because the prison must first verify whether the prisoner has sufficient funds to pay for the copies.

¶ 4. The librarian returned copies of the petition for review to Nichols in the afternoon of Friday, February 18, 2000. In his habeas petition, Nichols averred that it was too late to mail the petition for review that day because "mail only leaves the institution in the morning." He was unable to mail the petition on Saturday, February 19, because the prison mailroom was not open on Saturdays. Thus, on February 21, a Monday, Nichols delivered his petition for review, properly addressed, to the North Fork mailroom. A North Fork corrections officer processed Nichols' petition for priority mailing. It appears that the petition may not have been mailed until the following day. In an affidavit, the corrections officer that processed Nichols' petition stated that "mail leaving this institution typically does not arrive at its destination before four to ten days have elapsed."

¶ 5. The clerk of this court received Nichols' petition for review on February 28, 2000, one business day late. His petition was dismissed as untimely in a February 29 order. On March 24, 2000, Nichols filed a petition for a writ of habeas corpus in this court, asking that we consider his petition for review on its merits because he had acted "diligently and swiftly" in attempting to file the petition. He noted that his petition was mailed early enough that it should have arrived with time to spare.

¶ 6. We initially denied Nichols' habeas petition. He moved for reconsideration, arguing that any delay in the filing of his petition for review was due to prison officials' inadvertence or to prison policies and practices. Under such circumstances, Nichols argued, a petition should be considered "filed" when it is turned over to prison authorities for mailing. In his motion for reconsideration, Nichols referred this court to a then recently issued court of appeals decision, State ex rel. Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409. In Shimkus, the court determined that when a prison inmate deposits a certiorari petition in a prison mail receptacle, the 45-day time limit to file the certiorari action must be tolled. Id. at ¶ 14. We granted Nichols' motion for reconsideration.

¶ 7. The question before us is whether this court may consider a pro se prisoner's petition for review when the petition was received by the clerk more than 30 days after the date of the court of appeals decision from which the prisoner sought review. In addressing this question, we initially examine both a statute enacted by the legislature and a rule promulgated under this court's rule-making authority. Ultimately, however, our determination is rooted in a review of the rationales and conclusions of prior cases.

I — I HH J — I

¶ 8. Nichols argues that this court should adopt a "prison mailbox" rule with regard to the deadline to file a petition for review under § 808.10 and Wis. Stat. § (Rule) 809.62(1). Section 808.10 states:

Review by the supreme court. A decision of the court of appeals is reviewable by the supreme court only upon a petition for review granted by the supreme court. The petition for review shall be filed in the supreme court within 30 days of the date of the decision of the court of appeals.

Section (Rule) 809.62(1) states in relevant part:

A party may file with the supreme court a petition for review of an adverse decision of the court of appeals pursuant to s. 808.10 within 30 days of the date of the decision of the court of appeals.

In asking that we adopt a "prison mailbox" rule, Nichols argues that his petition for review should be considered "filed" for purposes of § 808.10 and § (Rule) 809.62(1) at the time that he delivered his petition to prison authorities for mailing.

¶ 9. As an alternative argument, Nichols asserts that this court should conclude that § 808.10 and § (Rule) 809.62(1) are unconstitutional as applied. He asserts that the State has effectively deprived him of his statutory 30-day filing period, and that this deprivation violates his constitutional rights to equal protection and due process.

¶ 10. The State disagrees with Nichols that a prison mailbox rule is necessary to save § 808.10 and § (Rule) 809.62(1) from constitutional infirmity. It asserts that the 30-day period is long enough to mitigate any differential impact that incarceration may have on pro se prisoners. However, the State agrees with Nichols that § 808.10 and § (Rule) 809.62(1) could "reasonably be construed to encompass a 'prison mailbox rule.'" Nevertheless, both the State and Nichols acknowledge that on its face, such an interpretation may be strained.

¶ 11. We decline to interpret the term "file" in § 808.10 and § (Rule) 809.62(1) to mean "deposit in a prison mailbox." We agree that such an interpretation may strain the plain language of both the statute and the rule. In addition, such a construction of the word "file" seemingly conflicts with language in our prior decisions.

¶ 12. As both parties acknowledge, we have in the past concluded that "[i]f the clerk of this court does not receive the petition for review for filing within that 30 days, this court is deprived of subject matter jurisdiction to review [a court of appeals] decision." St. John's Home v. Continental Cas. Co., 150 Wis. 2d 37, 43, 441 N.W.2d 219 (1989) (emphasis added); see also First Wis. Nat'l Bank v. Nicholaou, 87 Wis. 2d 360, 362, 274 N.W.2d 704 (1979). We have explained:

The clerk of this court has been designated to receive petitions for review as well as other documents for filing. These documents can either be hand delivered to the clerk's office ... or mailed to [the clerk's address]. Whatever method of delivery is used, a petition for review must be physically received in the clerk's office within 30 days of the filing of the court of appeals' decision that is to be reviewed.

St. John's, 150 Wis. 2d at 42-43 (citations omitted). In Gunderson v. DOT, 106 Wis. 2d 611, 615, 318 N.W.2d 779 (1982), we reiterated that "the filing of a petition does not occur upon its mailing."

¶ 13. We reaffirm the general vitality of the petition for review filing requirements as outlined in Nicholaou, Gunderson, and St. John's. However, this does not mean that Nichols is without relief.

¶ 14. In a recent court of appeals decision, Shimkus, 2000 WI App 238, a pro se prisoner, Mark Shimkus, sought circuit court certiorari review of a prison disciplinary committee decision pursuant to Wis. Stat. § 893.735. Under § 893.735, a prisoner seeking such review generally has 45 days from the date of a final administrative decision to file an action in circuit court for review. Although Shimkus placed his petition for a writ of certiorari in prison mail 12 days prior to the 45-day deadline, the clerk of court did not receive his petition until three days after the deadline. Id. at ¶ 3. The circuit court dismissed Shimkus's petition as untimely filed. Id.

¶ 15. The court of appeals reversed, concluding that when a prison inmate deposits a certiorari petition in a prison mail receptacle, the 45-day time limit to file the certiorari action must be tolled. Shimkus, 2000 WI App 238, ¶ 14. In reaching this conclusion, the court relied heavily on the rationale in the Supreme Court's decision in Houston v. Lack, 487 U.S. 266 (1988).

¶ 16. In Houston, 487 U.S. at 270-71, the Supreme Court explained the obstacles that pro se prisoner litigants face in filing documents. The Court stated:

Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation.

¶ 17. The Court in Houston emphasized the lack of control and certainty pro se prisoners have with regard to the filing of documents:

[T]he pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped "filed" on time.

Houston, 487 U.S. at 271 (emphasis in original). The Houston Court concluded that a pro se prisoner's notice of appeal from the denial of his federal habeas corpus petition was "filed at the time [he] delivered it to the prison authorities for forwarding to the court clerk." Id. at 276.

¶ 18. The Houston Court grounded its holding not in the United States Constitution, but in an interpretation of the definition of the word "filed" in Federal Rule of Appellate Procedure 4(a)(1). See Houston, 487 U.S. at 268, 272; see also Shimkus, 2000 WI App 238, ¶ 8. Nevertheless, a number of state supreme courts have adopted Houston's rationale in concluding that a petition for review or other document is "filed" at the time that a pro se prisoner delivers it to the proper prison authorities for mailing. See, e.g., Haag v. State, 591 So. 2d 614, 617 (Fla. 1992); Woody v. State, 833 P.2d 257, 259-60 (Okla. 1992); Commonwealth v. Jones, 700 A.2d 423, 425-26 (Pa. 1997). Other state supreme courts have rejected Houston and concluded that the word "file" may not be interpreted to encompass any such rule. See, e.g., Carr v. State, 554 A.2d 778, 780 (Del. 1989); State ex rel. Tyler v. Alexander, 555 N.E.2d 966 (Ohio 1990).

¶ 19. In Shimkus, 2000 WI App 238, ¶ 9, the court of appeals concluded that the rationale in Houston was "equally applicable" to the facts before it. However, the court of appeals declined to adopt the Houston Court's holding insofar as Houston concluded that the deposit of a pleading or notice in a prison mail receptacle constituted "filing" within the meaning of a time-limit statute. Id. The court of appeals reasoned that the procedures for commencing an action under § 893.735 are more complex than the procedures for filing a notice of appeal in federal court. Id.

¶ 20. In declining to adopt the Houston mailbox rule, the court of appeals seemed to recognize that an interpretation of "file" to mean "deposit in the prison mail receptacle" might prove problematic. See Shimkus, 2000 WI App 238, ¶ 9. The court noted that there is a difference in the filing procedures for the federal rule discussed in Houston and the Wisconsin rules at issue in Shimkus's case. Id. The federal rule related to the "simple act of filing a notice of appeal." The court of appeals emphasized that "nothing more is required for institution of the appeal proceedings." Id.

¶ 21. The court in Shimkus contrasted this "simple act" with the more involved process in Wisconsin for the commencement of a civil action by a pro se prisoner under § 893.735(2). 2000 WI App 238, ¶ 9. A civil action is not commenced until a filing fee is paid "unless payment is waived by the court for cause shown." Id.; see also Wis. Stat. §§ 801.02(6) and 814.29(1). In order to commence a certiorari action without full prepayment of the required fees, the prisoner must submit to the circuit court an affidavit of indigency and a trust fund account statement for the preceding six-month period. Shimkus, 2000 WI App 238, ¶ 9. Thus, the Shimkus court concluded, the proper course was to toll the statutory 45-day time limit between the time the prisoner deposited the appropriate documents in the prison mail receptacle and the time of their receipt by the clerk of court. Id.

¶ 22. Wisconsin cases have since built upon the Shimkus tolling rule in the context of pro se prisoner certiorari actions under § 893.735. In State ex rel. Locklear v. Schwarz, 2001 WI App 74, ¶¶ 5, 26, 242 Wis. 2d 327, 629 N.W.2d 30, the court of appeals concluded that the § 893.735 45-day time limit should also toll where a pro se prisoner has requested a "three-strikes" certification from the Department of Justice. The court reasoned that pro se prisoners have no choice but to entrust their papers to prison officials who they "cannot control or supervise" and who "may have every incentive to delay." Id. at ¶ 26 (quoting State ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶ 8, 238 Wis. 2d 393, 617 N.W.2d 201.)

¶ 23. Likewise, in State ex rel. Walker v. McCaughtry, 2001 WI App 110, ¶ 16, 244 Wis. 2d 177, 629 N.W.2d 17, the court of appeals concluded that the 45-day time limit could also toll where a prisoner has requested a trust account statement from the Department of Corrections as proof of indigency. The court explained the combined effect of its tolling rules, again based on the Houston rationale: "[T]he tolling begins when the documents over which prisoners have control have been mailed, and all of the documents over which prisoners have no control have been requested." Id. at ¶ 18. Referring to the 45-day statutory deadline, the court explained that "[b]y requiring prisoners to submit documents under their control within a designated period, the prisoner is treated equitably and the legislative intent is fulfilled." Id.

¶ 24. We are persuaded by the rationale in Houston and by the approach in Shimkus and its progeny. Accordingly, we apply a similar tolling rule to pro se prisoners who file petitions for review in this court.

¶ 25. While the procedures for commencing a civil action as discussed in Shimkus are not the same as those for filing a petition for review, both require filing fees and establish a separate procedure for waiver of those fees. Under Wis. Stat. § (Rule) 809.25(2)(a)l., the clerk of court "shall charge" $150 for the filing of a petition for review. However, a petitioner may seek a waiver of the fee by supplying this court with an affidavit of indigency. Wis. S. Ct. IOP II.L.2. (Mar. 16, 2000). Thus, as in Shimkus, a definition of "file" as "deposit in the prison mail receptacle" may be problematic in light of these procedures.

¶ 26. In addition, a tolling rule will avoid vexing questions as to the proper course of action where it appears that a pro se prisoner's petition is untimely because of prison authorities' failure to promptly mail or forward it. See Houston, 487 U.S. at 276; Shimkus, 2000 WI App 238, ¶ 6 n.4. We recognize that a tolling rule will not eliminate the potential for all factual disputes. Nevertheless, we are convinced that this potential is small, particularly when considered in light of an alternative such as case-by-case inquiries into whether prison officials improperly delayed the mailing.

¶ 27. While we do not mandate any particular procedure that litigants must follow, we note that both Nichols and the State agree that the factual question of the proper tolling date could be relatively easily resolved in most cases by the use of a certificate of service or affidavit of mailing. Such a certificate or affidavit may be desirable in that, as the State avers, many prisons do not have a general "log-in" system that identifies the date on which a prisoner submits outgoing mail. A certificate or affidavit would create a rebut-table presumption that the prisoner had delivered his or her petition to the proper prison authorities on the particular day certified. We note, however, that a tolling rule will not excuse a pro se prisoner who ultimately fails to pay filing fees, address the petition properly, or otherwise comply with filing requirements.

¶ 28. The tolling rule will ensure the proper treatment of pro se prisoners who file petitions for review. When pro se prisoners seek to file petitions, their control over the filing process is circumscribed by prison rules and procedures. Pro se prisoners' choice in method of filing is no choice at all. They must rely on the "vagaries of the mail." Other petitioners may personally deliver their petitions to the clerk of court's office, even at the last possible moment. We discern no convincing reason why pro se prisoners who act more promptly and otherwise comply with filing requirements should be placed at a disadvantage.

¶ 29. Finally, we turn to the question of whether the tolling rule we adopt today should receive prospective or retroactive application. In its brief, the State argues that to the extent this court grants relief, the rule should apply to Nichols, but should otherwise be prospective. In his reply brief, Nichols states that he takes no position on whether a prison mailbox rule should apply retroactively to others similarly situated, so long as he receives the benefit of the rule.

¶ 30. The State acknowledges that with respect to litigants other than Nichols, the proper retroactivity doctrine to apply is not immediately apparent. It recognizes that a holding in this case could be viewed as a rule of criminal procedure, applying retroactively to all cases pending on direct review or not yet final. See Griffith v. Kentucky, 479 U.S. 314 (1987). Yet, because § 808.10 applies to all petitions for review, both civil and criminal, it is unclear if the retroactivity analysis used in civil cases should govern. See Chevron Oil Co. v. Huson, 404 U.S. 97 (1971).

¶ 31. Given this uncertainty, we decline to decide whether the rule should be prospective or retroactive. Such a determination should be made with the benefit of briefs and argument on the merits by parties who take adverse positions. See Sopha v. Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 244, 601 N.W.2d 627 (1999).

¶ 32. In sum, we conclude that the 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing. Here, Nichols delivered his correctly addressed petition on the 26th day. Therefore, we determine that this court may consider Nichols' pro se petition for review even though it was received in the clerk's office more than 30 days after the date of the court of appeals decision.

By the Court. — The petition for habeas corpus is granted; rights declared.

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

       Because we determine that the 30-day deadline for receipt of Nichols' petition for review was tolled when he delivered the petition to prison authorities for mailing, we need not address his constitutional arguments.

       Wisconsin Stat. § 893.735 states, in part:
      (2) An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition... .
      (3) In this section, an action seeking a remedy available by certiorari is commenced at the time that the prisoner files a petition seeking a writ of certiorari with a court.

       Because it is not based in the United States Constitution, the Houston decision is not binding on this court. However, as this court and the court of appeals have noted, it is not uncommon for Wisconsin appellate courts to follow the reasoning of federal court decisions that we consider persuasive on a particular point of law. See American Med. Transp. v. Curtis-Universal, Inc., 154 Wis. 2d 135, 152, 452 N.W.2d 575 (1990); State ex rel. Shimkus v. Sondadle, 2000 WI App 238, ¶ 8, 239 Wis. 2d 327, 620 N.W.2d 409.

       Under Wis. Stat. § 801.02(7)(d), a circuit court must dismiss an action by a prisoner seeking to waive the prepayment of filing fees where that prisoner:
      has, on 3 or more prior occasions, while he or she was incarcerated, imprisoned, confined or detained in a jail or prison, brought an appeal, writ of error, action or special proceeding, including a petition for a common law writ of certiorari, that was dismissed by a state or federal court for any of the reasons listed in s. 802.05(3)(b) 1. to 4.

       In Houston v. Lack, 487 U.S. 266, 268 (1988), the Supreme Court described "delivery to prison authorities" as the act that constituted filing, whereas in Shimkus, 2000 WI App 238, ¶ 1, the court of appeals described "deposited in the prison mail receptacle" as the act that triggered tolling. Consistent with the facts in this case, we have used the phrase "delivers ... to prison authorities" as the act that triggers our tolling rule. We recognize that different prisons may have different procedures for outgoing prisoner mail. The important point is that in order to trigger tolling, the pro se prisoner must follow prison rules or practices as to outgoing mail whether they require placing the mail in the hands of certain prison authorities, depositing mail in a designated receptacle, or some other procedure.


text:
    S.J.A.J., Plaintiff-Respondent-Cross-Appellant-Petitioner, v. First Things First, Ltd. and Frontier Insurance Company, Defendants-Appellants-Cross-Respondents, The Travelers Insurance, Defendant-Respondent, David B. Hatch, Chicago Insurance Company, Aetna Life Insurance Company and Blue Cross & Blue Shield United of Wisconsin, Defendants.
    Supreme Court

      No. 99-2037.

      Oral argument September 13, 2001.- —
    Decided November 6, 2001.

    2001 WI 118
    (Also reported in 635 N.W.2d 292.)

      For the plaintiff-respondent-cross appellant-petitioner there were briefs by Phillip M. Steans and Phillip M. Steans, S.C., Menomonie, and Matthew A. Biegert and Doar, Drill & Skow, S.C., New Richmond, and oral argument by Phillip M. Steans.

    For the defendants-appellants-cross respondents there was a brief by James A. Pelish and Thrasher, Doyle, Pelish & Franti, Ltd., Rice Lake, and oral argument by James A. Pelish.

    An amicus curiae brief was filed by Mary Dianne Greenley, Madison, on behalf of the Wisconsin Coalition for Advocacy, Inc.
   PER CURIAM.

¶ 1. The court is equally divided on whether to affirm or reverse the decision of the court of appeals. Justice Jon R Wilcox, Justice N. Patrick Crooks, and Justice Diane S. Sykes would affirm; Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice David T. Prosser would reverse. Justice William A. Bablitch did not participate.

¶ 2. Accordingly, the decision of the court of appeals is affirmed.


author: ANDERSON, J.

text:
    Kyle Michael Muskevitsch-Otto, a minor, by his Guardian Ad Litem, Steven L. Toney, Plaintiff-Appellant, v. Jessica A. Otto, Affirmative Insurance Company, County of Winnebago and State Farm Mutual Automobile Insurance Company, Defendants, Allstate Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 00-3353.

      Submitted on briefs June 28, 2001.

    Decided August 1, 2001.

    2001 WI App 242
    (Also reported in 635 N.W.2d 611.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Steven L. Toney of Toney & Wagner, S.C., New London.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael S. Murray and Matthew W. Moran of Kasdorf, Lewis & Swietlik, S.C., Milwaukee.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.

       Petition to review denied 12-17-01.

   ANDERSON, J.

¶ 1. Kyle Michael Muskevitsch-Otto (Kyle) appeals a circuit court judgment upholding a jury verdict that he was not a resident of the home of Linda Tetting (his paternal grandmother) at the time he was injured in a one-car accident while a passenger in his mother's car. Because we agree with the circuit court that Kyle was not a resident of Tetting's home, we affirm.

¶ 2. This is an insurance coverage dispute. On October 16, 1995, Kyle was seriously injured in a one-car accident due to the negligence of his mother, Jessica A. Otto. At the time, Kyle was two years old and a front-seat passenger in the car. It is undisputed that Kyle always resided with Jessica. There was also testimony that Kyle spent a great deal of time with his grandmother, Linda. After Kyle settled with Jessica's insurer, he made a claim against Allstate Insurance Company (Allstate), Linda's insurer. Kyle based this claim on the fact that he had spent some time with Linda and that she was like a "second mother" to him. Allstate denied coverage and a jury determined that Kyle was not a resident of the Tetting household. Kyle appeals.

¶ 3. The issue in this case is the correctness of the Resident of Household instruction given to the jury. In Wisconsin, there is currently no standard instruction. Allstate proffered an instruction similar to one suggested in a recent Wisconsin Lawyer article, 73 Wis. Lawyer, Vol. 73, No. 4 (Apr. 2000). Kyle objected to this instruction and offered a different instruction. The trial court gave Allstate's suggested instruction.

¶ 4. Kyle complains that the instruction was an incorrect statement of the law because it placed improper emphasis on the intent of the plaintiff (a minor). The instruction given to the jury was as follows:

Question one of the verdict asks if Kyle Michael Muskevitsch-Otto, was a resident of the household of Jeffrey and Linda Tetting at the time of the accident. In deciding whether a person is a resident of a particular household, the key element is the intent of that person to be a resident of the household in question and to live under the same roof with a close, intimate, informal relationship.
To assist you in determining whether Kyle Michael Muskevitsch-Otto was a resident of Jeffrey and Linda Tetting's home, you are instructed that: at the time of the accident, Kyle Michael Muskevitsch-Otto was not living with Jeffrey and Linda Tetting. Kyle Michael Muskevitsch-Otto may. be a resident of Jeffrey and Linda Tetting's home even though Kyle Michael Muskevitsch-Otto also lived elsewhere, and a person may be a resident of more than one household. If Kyle Michael Muskevitsch-Otto was not living with Jeffrey and Linda Tetting at the time of the accident, but intended to come back to live with Jeffrey and Linda Tetting, this indicates Kyle Michael Muskevitsch-Otto was a resident of that household. If, however, Kyle Michael Muskevitsch-Otto was physically absent from Jeffrey and Linda Tetting's home and had no intent to return and live with them, this indicates Kyle Michael Muskevitsch-Otto was not a resident of Jeffrey and Linda Tetting's household.
In deciding the intent of Kyle Michael Muskevitsch-Otto at the time of the accident, you are to consider that Kyle Michael Muskevitsch-Otto was two years old, and that he had established a separate residence with his mother, Jessica Otto. You may also consider the frequency and duration of stays at Jeffrey and Linda Tetting's home.
Finally, evidence such as personal possessions in the home, use of the home as a mailing address, or other use of Jeffrey and Linda Tetting's address may be considered but are not dispositive. A determination of residency in a household is based upon the facts of each individual case.
After review of all the facts and circumstances of this case and the application of these instructions, if you find that Kyle Michael Muskevitsch-Otto was a resident of Jeffrey and Linda Tetting's household at the time of the accident in question, then you should answer Question number one "yes." If not, you should answer Question number one "no."
The burden of proof with respect to the issue of whether Kyle Michael Muskevitsch-Otto was a resident of Jeffrey and Linda Tetting's household on the day of this accident is upon the plaintiff in this case.

¶ 5. The trial court has broad discretion when giving jury instructions so long as they fully and fairly inform the jury of the applicable law. State v. Boshcka, 178 Wis. 2d 628, 636-37, 496 N.W.2d 627 (Ct. App. 1992). When the trial court's instructions adequately cover the law, there is no error in its refusal to give a certain instruction even where the proposed instruction is not erroneous. Northwestern Nat'l Ins. Co. v. Nemetz, 135 Wis. 2d 245, 263-64, 400 N.W.2d 33 (Ct. App. 1986).

¶ 6. We review an instruction in the context of the overall charge to the jury. Buel v. LaCrosse Transit Co., 77 Wis. 2d 480, 493, 253 N.W.2d 232 (1977). Even if we find an instruction to be erroneous in part or in whole, a new trial is not warranted unless we also find that the error is prejudicial. Couillard v. Van Ess, 141 Wis. 2d 459, 464, 415 N.W.2d 554 (Ct. App. 1987). In short, an erroneous jury instruction is not fatal unless we are satisfied that it is probable — not merely possible — that the error affected the jury's determination. Fleury v. Wentorf, 82 Wis. 2d 105, 113, 262 N.W.2d 68 (1978).

¶ 7. The trial court's jury instruction properly focused on intent. Kyle complains that this focus was erroneous. Kyle is wrong. Intent is a key factor in a residency determination even though there are other factors that also bear on the determination. Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis. 2d 27, 37, 197 N.W.2d 783 (1972); see also Seichter v. McDonald, 228 Wis. 2d 838, 846, 599 N.W.2d 71 (Ct. App. 1999) (where we recently re-examined and approved this statement of the law).

¶ 8. The trial court not only correctly emphasized intent but correctly included other factors in its instruction. The other factors the trial court instructed the jury to consider were Kyle's frequency and duration of stays at the Tetting home, his personal possessions in the home, his use of the Tetting home as a mailing address, or his other use of the Tetting home as an address. In addition, the trial court instructed the jury to consider all of the facts and circumstances bearing on the question of residency. We are satisfied with the instruction in this regard.

¶ 9. Kyle also argues that the instruction improperly required the jury to conclude that he, two years old on the date of the accident, could have formed intent. Kyle contends that a child of this age could not form intent and that the instruction instead should have focused on Jessica's and Linda's intent. Kyle ignores the fact that the instruction told the jury to factor in that Kyle was but two years old on the date of the accident. We conclude that the jury would inferentially understand that it had to look to the adult actors in this case who spoke for Kyle. We are satisfied with the instruction in this regard.

¶ 10. Finally, Kyle argues that the instruction was erroneous because in it the trial court made a factual finding that Kyle was not living with the Tettings on the date of the accident and conditioned a jury finding of residency at the time of the accident on an intent to return to live with the Tettings. We surmise that this part of the instruction was prompted by the fact that the trial court answered "yes" to the second question of the special verdict, which informed the jury of the undisputed fact that Kyle was living with Jessica at the time of the accident. Importantly, this part of the instruction was immediately followed by language that informed the jury that despite not living with the Tettings, "a person may be a resident of more than one household." We are satisfied with this clarification of the law.

¶ 11. Kyle also takes issue with the part of the instruction which told the jury that if he was not living with the Tettings at the time of the accident, but intended to come back to live with the Tettings, this would indicate that he was a resident of that household. Frankly, we are not sure why the trial court included this language. We believe it clouds the issue somewhat in that it possibly implies to the jury that Kyle had to live with the Tettings in order to be a resident. Nonetheless, because the evidence is so strong in support of the jury's finding of nonresidency, we believe that any error in the instruction did not affect the outcome and therefore does not warrant a reversal. See Fleury, 82 Wis. 2d at 113.

By the Court. — Judgment affirmed.