author: VERGERONT, J.

text:
    Rick Jackson, Petitioner-Appellant, v. Labor and Industry Review Commission and USF Holland, Respondents-Respondents.
    Court of Appeals

      No. 2005AP2123.

      Submitted on briefs February 6, 2006.

      Decided April 27, 2006.

    2006 WI App 97
    (Also reported in 715 N.W.2d 654.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of the pro se appellant Rick Jackson, Janesville.
    On behalf of the respondents-respondents, Labor and Industry Review Commission, the cause was submitted on the brief of David C. Rice, asst, attorney general, and Peggy A. Lautenschlager, attorney general.
    On behalf of the respondents-respondents, USF Holland, the cause was submitted on the brief of Steven P. Means, Michael Best & Friedrich LLP, Madison, and Michael N. Chesney and Anthony J. Lazzaro, Frantz Ward LLP, Cleveland, Ohio.
    Before Lundsten, PJ., Dykman and Vergeront, JJ.
   VERGERONT, J.

¶ 1. Rick Jackson appeals an order of the circuit court dismissing, sua sponte, his petition for review of a decision of the Labor and Industry Review Commission (LIRC). The circuit court concluded that Jackson's petition did not state the nature of his interest, facts showing he was aggrieved, and the grounds on which the agency decision should be reversed or modified, as required by Wis. Stat. § 227.53(l)(b) (2003-04).

¶ 2. We conclude as follows: (1) Dismissal of a petition for failure to state facts showing the petitioner is aggrieved is governed by Wis. Stat. § 227.56(3), and that provision does not permit the circuit court to sua sponte dismiss a petition without a motion from the respondent and without the petitioner having at least one opportunity to amend the petition on the terms described. (2) Dismissal for failure to state the nature of the petitioner's interest and the grounds on which the agency decision should be reversed or modified is not expressly addressed by statute but the more reasonable construction of the relevant statutes is that the circuit court does not have the authority to dismiss a petition on these grounds in the absence of a motion from the respondent and without the petitioner having a reasonable opportunity to request leave to amend the petition. (3) Jackson's petition, liberally construed, adequately states the nature of his interest, facts showing he was aggrieved, and the grounds on which the agency decision should be reversed or modified, as required by Wis. Stat. § 227.53(l)(b). We therefore reverse and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 3. On July 8, 2005, Jackson filed a one-page document in the Rock County Circuit Court with this heading: "Rick Jackson Petitioner vs. Labor and Industry Review Commission Respondent / USF Holland, ERD case no. cr 200002723, State of Wisconsin, Circuit Court of Rock County." The body of the document states:

I Rick Jackson petitioner petition this court to schedule a briefing schedule so petitioner can argue his case by way of relevant issues.
The Labor and Industry Review Commission did not follow the law as in the legislatures intent. See Declaration of Policy 111.31.
Here are some examples of Labor Industry Review Commissions bias. The Commission has continuously manufactured defenses for respondents such as most any crime (99.9 percent) would be substantially related be it misdemeanor or felony. If the crime was even fifty years old it would still be substantially related. Complainants are also denied discovery, also once an ex-offender enters an employers property it is substantially related. The commission cannot show but a few cases ever prevailed predominantly sex offenders. The commissions actions spanning two decades shows a total disregard for persons of color. Conviction record individuals are prevented from obtaining jobs due to out-dated extremely biased political individuals not being able to accept changing times. The unconstitutional actions of the commission need to be addressed without deliberate indifference. Does this court have the wisdom to apply the law without any bias or fan mail from narrow minded intolerants with outdated mentalities.

The bottom of the page contains Jackson's name and address and "cc's" to Labor and Industry Review Commission, with address, and to "USF Holland Allan C. Cave for Respondent," with address.

¶ 4. One week later, on July 15, 2005, LIRC filed a "Notice of Appearance and Statement of Position on Behalf of the Labor and Industry Review Commission." LIRC's position was that "its decision and order which is sought to be reviewed by the petitioner should not be reversed or modified, but should be affirmed in all respects." LIRC did not seek dismissal of the document Jackson had filed.

¶ 5. By letter dated July 15, 2005, LIRC's counsel wrote to the court and described the case as

a judicial review of a decision of [LIRC] under the Wisconsin Fair Employment Act (WFEA), see Wis. Stat. §§ 111.31-111.395. The Commission decided that there was not probable cause to believe that USF Holland unlawfully discriminated against petitioner Rick Jackson on the basis of his conviction record or that USF Holland had a policy of not hiring anyone who had a felony conviction.

The letter noted that a pretrial conference was scheduled for August 3, 2005, but, the letter said, a conference is unnecessary because judicial review of LIRC's decision is confined to the record made before LIRC. The letter asked that the court instead establish a briefing schedule and it suggested a schedule, beginning with Jackson's brief.

¶ 6. Although LIRC's letter was dated July 15, 2005, it was not filed with the clerk of court until July 21, 2005. Also on July 21, the circuit court entered a written decision and order dismissing the petition. In its decision, the court stated that it was unclear from the petition what LIRC decision Jackson was aggrieved by. The court noted that a review of the records of the clerk of court showed that Jackson had filed seven previous actions against LIRC, and the court stated it could not determine "whether [Jackson was] seeking to re-litigate one or more of those controversies or whether he takes issue with another determination of the commission."

¶ 7. The decision analyzed the requirements of Wis. Stat. § 227.53, which, the court stated, would govern review of a LIRC decision. See Wis. Stat. § 227.52(7). The court then examined the portion of § 227.53(l)(b) that provides that "[t]he petition shall state the nature of the petitioner's interest, the facts showing that petitioner is a person aggrieved by the decision, and the grounds specified in s. 227.57 upon which petitioner contends that the decision should be reversed or modified." The court concluded that the petition did not show the administrative decision from which Jackson was seeking review, his interest in the decision or, most importantly, the grounds in Wis. Stat. § 227.57 on which he was seeking reversal or modification.

¶ 8. The court stated that it "tried to give the petitioner the benefit of every reasonable inference that can be drawn from his petition," but concluded that the petition "does not recite facts upon which relief may be granted."

¶ 9. After this decision was entered, USF Holland filed an "Entry of Appearance" stating only that it appeared by the named counsel. LIRC filed the record of the proceedings before it, which are part of the appellate record.

ANALYSIS

¶ 10. On appeal, Jackson, pro se, argues that it was unfair for the court to dismiss his petition for a "technical reason" when he is not a lawyer and without giving him the opportunity to present his arguments. He also presents arguments supporting his position that LIRC erred in finding no probable cause. In response, LIRC contends that the petition "arguably" does not sufficiently state the nature of Jackson's interest, the facts showing he is a person aggrieved by LIRC's decision, and the grounds specified in Wis. Stat. § 227.57 on which he contends the decision should be reversed or modified. LIRC notes that Wis. Stat. § 227.53(l)(b) provides that "[t]he petition may be amended, by leave of court, though the time for serving has expired," and suggests that Jackson should have sought leave to amend his petition after the court dismissed it. USF Holland argues that the circuit court correctly dismissed the petition because it did not meet the three identified requirements in § 227.53(1)(b). In his reply brief, Jackson appears to dispute whether he could have "re-filed" after the court's decision dismissing his petition.

¶ 11. Resolution of the issues raised on this appeal require that we construe Wis. Stat. § 227.53(1)(b) and related statutes. The proper construction of a statute presents a question of law, which we review de novo. The Landings LLC v. City of Waupaca, 2005 WI App 181, ¶ 5, 287 Wis. 2d 120, 703 N.W.2d 689.

¶ 12. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If, employing these principles, statutory language is unambiguous —that is, there is only one reasonable meaning — we apply that plain meaning. Id., ¶ 46. On the other hand, if the statutory language is capable of being understood by reasonably well-informed persons in two or more senses, then we may employ sources extrinsic to the statutory text; extrinsic sources are typically items of legislative history. Id., ¶¶ 47, 50.

¶ 13. Wisconsin Stat. § 227.53 is part of the statutory scheme that addresses the procedure for judicial review of administrative agency decisions. Section 227.53(l)(b) addresses the contents of petitions for judicial review and provides in relevant part:

(b) The petition shall state the nature of the petitioner's interest, the facts showing that petitioner is a person aggrieved by the decision, and the grounds specified in s. 227.57 upon which petitioner contends that the decision should be reversed or modified. The petition may be amended, by leave of court, though the time for serving the same has expired. The petition shall be entitled in the name of the person serving it as petitioner and the name of the agency whose decision is sought to be reviewed as respondent, [with certain exceptions not relevant here.]

Section 227.53(l)(b) (footnote added).

¶ 14. The first sentence of this subsection requires that the contents of a petition meet three requirements. It must state: (1) the nature of the petitioner's interest; (2) the facts showing that petitioner is a person aggrieved by the decision; and, (3) the grounds specified in Wis. Stat. § 227.57 upon which petitioner contends that the decision should be reversed or modified. The plain language of the second sentence authorizes the court to allow an amendment even after the thirty-day time period (running from the date on which the agency decision was served) for serving the petition has passed. See Wis. Stat. § 227.53(l)(a) and (c). However, the paragraph is silent on whether the court may dismiss the petition without allowing the petitioner any opportunity to request leave to amend.

¶ 15. The only other provision in Wis. Stat. ch. 227 that addresses amendments to petitions for judicial review is Wis. Stat. § 227.56(3). This subsection addresses amendments relating to only one of the three requirements in the first sentence of Wis. Stat. § 227.53(l)(b) — facts showing that the petitioner is aggrieved:

(3) Within 20 days after the time specified in s. 227.53 for filing notices of appearance in any proceeding for review, any respondent who has served such notice may move to dismiss the petition as filed upon the ground that such petition, upon its face, does not state facts sufficient to show that the petitioner named therein is a person aggrieved by the decision sought to be reviewed. Upon the hearing of such motion the court may grant the petitioner leave to amend the petition if the amendment as proposed shall have been served upon all respondents prior to such hearing. If so amended the court may consider and pass upon the validity of the amended petition without further or other motion to dismiss the same by any respondent.

Section 227.56(3) (footnote added).

¶ 16. In the following sections we address, first, the proper procedure for dismissal of a petition for failure to state facts showing the petitioner is aggrieved, and, second, the procedure for dismissal of a petition for failure to state the other two requirements in the first sentence of Wis. Stat. § 227.53(l)(b). For the reasons we explain, we conclude the circuit court was not authorized to employ the procedure it did in dismissing the petition. In the third section we determine that the court erred in its substantive conclusion that the petition, liberally construed, does not meet the three requirements.

I. Procedure for Dismissal of a Petition for Failure to State Facts Showing the Petitioner is Aggrieved

¶ 17. Wisconsin Stat. § 227.56(3), set forth in paragraph fifteen, provides a specific procedure for a respondent to challenge a petition on the ground that it does not state facts showing that the petitioner is aggrieved. This procedure imposes a time period for bringing such a motion, requires the petitioner to serve a proposed amendment by a specific time in order to have permission to amend, and authorizes the circuit court to decide if the amended petition is valid without a "further or other motion" from the respondent. Under this procedure, the petitioner has notice — through the respondent's motion — of the asserted deficiency in the petition and the opportunity to correct the deficiency if a proposed amended petition is timely made. Because the section specifically describes in the last sentence the circumstances under which a court may dismiss a petition — but only an amended petition — without a motion from the respondent, the only reasonable construction of § 227.56(3) is that the court may not dismiss the original petition without a timely motion from the respondent asserting that the petition does not allege facts showing that the petitioner is aggrieved.

¶ 18. Here neither respondent had filed such a motion when the court sua sponte dismissed the petition. We therefore conclude that the circuit court did not have the authority to dismiss the petition sua sponte on the ground that it did not allege facts showing that Jackson was aggrieved.

II. Procedure for Dismissal of a Petition for Failure to State The Nature of the Petitioner's Interest and the Grounds for Modifying or Reversing the Agency Decision

¶ 19. Because Wis. Stat. § 227.56(3) does not address the other two requirements for a petition contained in the first sentence of Wis. Stat. § 227.53(l)(b) —the nature of the petitioner's interest and the grounds specified in Wis. Stat. § 227.57 upon which the petitioner contends the decision should be reversed or modified — we must next decide what procedure the legislature intended when there is a deficiency asserted on these two grounds. As we have already stated, the language of § 227.53(1)(b) plainly authorizes the court to allow an amendment, but is silent on whether the court may sua sponte dismiss the petition without allowing the petitioner any opportunity to request leave to amend. This silence creates an ambiguity and raises two distinct issues: (1) must the petitioner have a reasonable opportunity to amend the petition before it is dismissed on either of these two grounds; and, (2) if the answer to that question is "yes," may the court sua sponte raise the deficiency or must there be a motion from the respondent? On the first issue, we conclude the more reasonable construction of § 227.53(l)(b) is that it does not authorize a circuit court to dismiss a petition unless the petitioner is first notified of the claimed deficiency and has a reasonable opportunity to request leave to amend. On the second issue, we conclude the more reasonable construction is that the claimed deficiency must be raised by motion of the respondent and may not be raised by the court sua sponte.

A. Notice and Reasonable Opportunity to Amend

¶ 20. In deciding whether the petitioner must be notified before dismissal of the claimed deficiency and given a reasonable opportunity to request leave to amend, we first examine the statutory language of Wis. Stat. § 227.53(l)(b). The express grant of authority in § 227.53(l)(b) for a court to permit amendments after the time for filing the petition has passed indicates an intent to allow amendments to correct petitions that do not comply with § 227.53(l)(b). In addition, if the circuit court already had the authority to sua sponte dismiss a petition for failure to state facts showing the petitioner is aggrieved, without providing any opportunity to request leave to amend, there would be no need for the last sentence of Wis. Stat. § 227.56(3). See Kalal, 271 Wis. 2d 633, ¶ 46 (statutes are to be interpreted reasonably and without surplusage).

¶ 21. Second, we consider the few cases we have found that discuss either Wis. Stat. §§ 227.53(l)(b) or 227.56(3) and conclude that they favor allowing petitioners an opportunity to correct a petition that does not meet the requirements of § 227.53(l)(b). In Evans v. Wisconsin Department of Local Affairs and Development, 62 Wis. 2d 622, 215 N.W.2d 408 (1974), the court addressed a petition's failure to comply with the last sentence of § 227.53(1)(b) (formerly contained in Wis. Stat. § 227.16(1) (1971)): "[t]he petition shall be entitled in the name of the person serving [it] as petitioner and the name of the agency whose decision is sought to be reviewed as the respondent. . .." The respondent moved to dismiss on this ground and the court granted the motion, stating that this requirement is "jurisdiction[al]." Id. at 626. The supreme court reversed. It distinguished this requirement from the service and filing requirements in Wis. Stat. § 227.16(1) (1971), observed that the faulty caption "in no way affected the subject matter jurisdiction [competency] of the court nor the grounds alleged for review," and concluded that the petitioner should have been permitted to amend the caption to comply with the statute. Id. at 626-28 (footnote added). It is not clear from the recitation of the facts in Evans whether the petitioner requested leave to amend. Regardless, Evans reflects the supreme court's view that the circuit court should allow amendments to petitions to conform to requirements in Wis. Stat. ch. 227 that do not affect the court's competency to proceed or personal jurisdiction over the proper agency. Id. at 626.

¶ 22. It is true that Evans is distinguishable from this case because, as the court noted there, the faulty caption did not affect "the grounds alleged for review," id., whereas the court here found that one of the deficiencies was failure to allege the applicable grounds in Wis. Stat. § 227.57. However, in Kegonsa Joint Sanitary District v. City of Stoughton, 87 Wis. 2d 131, 151, 274 N.W.2d 598 (1979), decided after Evans, the court treats the requirement of stating grounds for reversal or modification in Wis. Stat. § 227.53(1)(b) (then numbered Wis. Stat. § 227.16(1) (1971)) as one of stating a claim upon which relief can be granted: the court treats this as distinct from challenges to subject matter jurisdiction (competency) and personal jurisdiction. In addition, in Kegonsa the court notes that the rule of liberally construing petitions when determining if they state a claim "is . . . consistent with legislative policy in Wisconsin to favor judicial review of administrative decisions at the timely instance of any person whose substantial interests are adversely affected." Kegonsa, 87 Wis. 2d at 151-52.

¶ 23. In Milwaukee Co. District Council 48 v. Wisconsin Employment Relations Board, 23 Wis. 2d 303, 308-09, 127 N.W.2d 59 (1964), the supreme court discussed, although briefly, both Wis. Stat. §§ 227.53(l)(b) and 227.56(3) (then numbered Wis. Stat. §§ 227.16(1) and 227.19(3) (1963)). The agency moved the circuit court to dismiss the union's petition for review on the ground that thé petition did not state facts sufficient to constitute a cause of action. Milwaukee Co. Disk Council 48, 23 Wis. 2d at 305. The circuit court dismissed the petition because it did not state facts sufficient to show that the union was aggrieved by the agency's action. Id. After quoting § 227.56(3) (then § 227.19(3) (1963)), the supreme court stated:

In the case now before us the motion to dismiss was not expressly grounded upon failure to state facts sufficient to show that petitioner was aggrieved and directly affected, and hence the form of the motion did not alert the petitioner to the claimed insufficiency and the specified procedure for amendment to cure the defect. As we read the opinion of the learned circuit judge, he has indicated that he would have deemed the petition amended to show the required facts except for his conclusion that the general provisions authorizing amendment [Wis. Stat. § 227.53(l)(b), formerly numbered Wis. Stat. § 227.16(1)] did not apply to amendment to meet a motion to dismiss under sec. [227.56(3)]. Under these circumstances, and since the petitioner's interest was concededly shown by the record of the proceeding before the board, we conclude that the circuit court erroneously dismissed the petition.

Id. at 308-09.

¶ 24. Milwaukee Co. District Council 48 is instructive because of its holding that the circuit court erred in dismissing a petition for a failure to show a party was aggrieved, in spite of the petitioner's failure to follow the procedure in Wis. Stat. § 227.56(3) for amending the petition, when the agency's record showed the petitioner was in fact aggrieved. This supports the view that a petition that does not show the nature of the petitioner's interest and the ground for relief under Wis. Stat. § 227.57, which requirements are not subject to the special amendment procedures in § 227.56(3), should not be dismissed if the deficiencies in the petition can be corrected.

¶ 25. Third, we consider legislative history. The predecessor to Wis. Stat. § 227.53(l)(b) was included when Wis. Stat. ch. 227 was first enacted by 1943 Wis. Laws, ch. 375. Then numbered Wis. Stat. § 227.16 (1943), it provided in part: "The notice of appeal shall state the nature of the appellant's interest and the grounds of appeal, and may be amended, by leave of court, though the time for appeal has expired."

¶ 26. In a law review article authored by Ralph M. Hoyt, the person who introduced the bill that eventually became Wis. Stat. ch. 227, Hoyt wrote that the purpose of the provision allowing for amendment in Wis. Stat. § 227.16 (1943) was to "afford the appellant every opportunity to get into court... so long as he apprises his adversaries of the nature of his grievance at least by the time the appeal comes on for hearing." See Ralph M. Hoyt, The Wisconsin Administrative Procedure Act, 1944 Wis. L. Rev. 214, 232 (1944). With respect to the requirement that the petition state the grounds of the appeal, he wrote:

The provision requiring a statement of the grounds of appeal [in Wis. Stat. § 227.16(1943)] is intended, not as calling for formal pleadings but simply as requiring the appellant to state which of the several grounds on which reversal may be had (as hereinafter discussed) he is relying upon. Here again the statute gives him liberal consideration by authorizing the amendment of the notice of appeal, by leave of court, even after the time for appeal has expired. The aim is to afford the appellant every opportunity to get into court and secure a reversal upon any ground that the statute may countenance, so long as he apprises his adversaries of the nature of his grievance at least by the time the appeal comes on for hearing.

Hoyt, 231-32.

¶ 27. This legislative history supports a construction of Wis. Stat. § 227.53(1)(b) whereby a petitioner has a reasonable opportunity to amend the petition, so long as it is done in a timely manner, to show the nature of the petitioner's interest and the grounds under Wis. Stat. § 227.57 on which the petitioner seeks relief.

¶ 28. Finally, we consider the due process analysis in State ex rel. Schatz v. McCaughtry, 2003 WI 80, 263 Wis. 2d 83, 664 N.W.2d 596. In Schatz, the supreme court addressed a statute that requires a circuit court to review the initial pleading in a civil action or special proceeding filed by a prisoner and authorizes the court to sua sponte dismiss the pleading, without requiring the defendant to answer, for specified reasons that include the pleading's failure to state a claim upon which relief may be granted. Wis. Stat. § 802.05(3)(a) and (b). The Schatz court noted that the statute did not require the court to give the prisoner litigant notice of an intent to dismiss and an opportunity to be heard prior to exercising its authority under the statute to dismiss for failure to state a claim. Schatz, 263 Wis. 2d 83, ¶ 17. The court examined prior case law recognizing that sua sponte dismissal by a court could be valid under the due process clause where the relevant statute provides constructive notice of the potential for such dismissal. Id., ¶¶ 19-21, 30. The court then concluded that § 802.05(3) provided constructive notice because it expressly put prisoners on notice that the circuit court will examine the pleading and has the authority to dismiss without further briefing or hearing if the court determines the pleading failed to state a claim. Id., ¶ 31. The court concluded that this constructive notice, together with post-dismissal procedures available to the prisoner, satisfied the requirements of due process. Id., ¶ 47.

¶ 29. We read the Schatz court's analysis of constructive notice via a statute as a critical requirement for due process when there is no actual notice. Unlike Wis. Stat. § 802.05(3), Wis. Stat. § 227.53(l)(b) does not expressly inform a petitioner that the circuit court may sua sponte dismiss a petition for judicial review, without first giving the petitioner any opportunity to be heard or to amend the pleading, if it does not meet the requirements of that section. Thus, construing the statute to permit the circuit court to do so would create a constitutional problem, which we are to avoid if there is another reasonable construction. See Madison Metro. Sewerage Dist. v. DNR, 63 Wis. 2d 175, 184-85, 216 N.W.2d 533 (1974).

¶ 30. In summary, based on the language of Wis. Stat. § 227.53(l)(b), in light of Wis. Stat. § 227.56(3), the case law discussing these provisions, the legislative history, and the due process analysis in Schatz, we conclude the circuit court may not dismiss a petition for judicial review because it does not show the nature of the petitioner's interest or state a ground for relief under Wis. Stat. § 227.57 unless the petitioner has notice of the possibility of dismissal and a reasonable opportunity to request leave to amend the petition. Here, there is no indication in the record that Jackson had notice the circuit court was considering a deficiency in the petition before it dismissed the petition.

B. Motion by Respondent

¶ 31. We next address whether the court may sua sponte, in the absence of a motion to dismiss from the respondent, raise a deficiency in the petition regarding the nature of the petitioner's interest or the grounds for relief. Either procedure is consistent with providing notice to the petitioner of the asserted deficiency and a reasonable opportunity to request leave to amend. We conclude the more reasonable construction of Wis. Stat. § 227.53(1)(b) is that a respondent must raise these deficiencies by motion.

¶ 32. First, the purpose of these pleading requirements is to give the respondent notice of the nature of the petitioner's grievance so that the respondent has a fair opportunity to respond. See Hoyt, 231-32, quoted above in paragraph 26. If the respondent decides there is no need for an amendment to the petition on these points before the court establishes a briefing schedule, as LIRC apparently did in this case, we can see no purpose served by the court raising the issue of a deficiency in the petition.

¶ 33. Second, it is unlikely that the legislature intended that a motion from a respondent was required before a court could dismiss a petition on the ground that it did not state facts showing the petitioner was aggrieved under Wis. Stat. § 227.56(3), but intended not to require a motion before the court could dismiss the petition on the other two grounds derived from the first sentence in Wis. Stat. § 227.53(l)(b). The short timeframe for bringing a motion to dismiss under § 227.56(3) and the other procedures in that section indicate that the legislature was particularly concerned with promptly resolving the issue of the petitioner's standing — that is, whether the petitioner was aggrieved. It is not consistent with that purpose to impose a procedure — the respondent moving to dismiss — for that pleading requirement that does not exist with respect to the other two pleading requirements in § 227.53(l)(b). It is more reasonable to construe § 227.53(l)(b) and § 227.56(3) as contemplating that a respondent must raise any pleading deficiency by motion, but as to a deficient pleading on the petitioner's aggrieved status, there are, in addition, timing and other procedural requirements.

C. Conclusion

¶ 34. The circuit court did not have the authority to dismiss Jackson's petition on the ground that it did not state the nature of his interest or the grounds for relief under Wis. Stat. § 227.57 without a motion from one of the respondents and without providing Jackson with a reasonable opportunity to request leave to amend the petition.

III. Sufficiency of Jackson's Petition

¶ 35. Our conclusions in the preceding two sections require that we reverse the order of dismissal because the court did not have the authority to employ the procedure it did. Whether USF Holland should have the opportunity on remand to move to dismiss the petition depends upon whether the circuit court correctly decided that the petition was deficient under Wis. Stat. § 227.53(l)(b). This presents a question of law, which we review de novo. See Rainbow Springs Golf Co. v. Town of Mukwonago, 2005 WI App 163, ¶ 8, 284 Wis. 2d 519, 702 N.W.2d 40 (we review de novo the circuit court's dismissal of a complaint for failure to state a claim).

¶ 36. In analyzing the sufficiency of the petition, we are to look at the petition as a whole in the light most favorable to Jackson to see "if it expressly or by reasonable inference states any cause of action." Kegonsa, 87 Wis. 2d at 151. In Kegonsa the court decided that a petition for judicial review adequately stated grounds specified in Wis. Stat. § 227.57 (formerly Wis. Stat. § 227.20 (1971)) even though the petition was "far from being a model of legal clarity, coherence and correctness," "[m]uch of its language [was] vague, inflammatory and of no legal consequence," and the allegations in the complaint were "questionable." Id. at 151-2. In spite of that, the court concluded, taking the petition as a whole and viewing it in the light most favorable to the petitioner, it did "raise the issue of procedural irregularities and abuse of discretion in the department's treatment of the [petitioner's] application for financial assistance." Id. at 151. We conclude Jackson's petition is sufficient under this standard.

¶ 37. It is reasonable to infer from the petition that Jackson is alleging that he was prevented from obtaining a job with USF Holland because he had a prior conviction and that he filed a complaint with DILHR alleging that USF Holland discriminated against him based on a prior conviction in violation of Wis. Stat. § 111.31, which prohibits discrimination on several grounds, including conviction records. It is also reasonable to infer that DILHR made a decision adverse to him. This is sufficient to show the nature of Jackson's interest and that he is aggrieved by the decision. If there were any doubt on this, the record returned by LIRC demonstrates this, and that record is appropriate for us to take into account. See Milwaukee Co. District Council 48, 23 Wis. 2d at 308-09.

¶ 38. We also conclude the petition adequately states at least one ground specified in Wis. Stat. § 227.57 upon which Jackson claims the decision should be reversed. It is reasonably clear from the petition that Jackson is challenging LIRC's determination that the circumstances of Jackson's conviction "substantially relate" to the job he applied for. See Wis. Stat. § 111.335(1)(e). It is also reasonably clear that at least one basis for Jackson's challenge is that LIRC has expanded the meaning of this statutory provision beyond that intended by the legislature. This sufficiently identifies a ground for reversal under § 227.57(5): erroneous construction of a statute. There is no requirement that Jackson cite to the ground in § 227.57 on which he is relying or use the language of that statute. See Kegonsa, 87 Wis. 2d at 151-152.

¶ 39. Because we conclude Jackson's petition adequately fulfills the three requirements of the first sentence of Wis. Stat. § 227.53(l)(b), there is no purpose in allowing USF Holland, on remand, to move to dismiss on the grounds that it does not.

¶ 40. We reverse and remand to the circuit court for it to conduct such further proceedings as are appropriate and consistent with this decision.

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

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

       In its decision the court also observed that there were no "proofs of service" in the file. Wisconsin Stat. § 227.53(1)(a) provides that within thirty days of service of the agency decision upon all parties (if no rehearing is requested), the petition for judicial review must he filed in the court and served personally or by certified mail on the agency. Section 227.53(1)(c) provides that within thirty days "after the institution of the proceeding," the petition must be served personally, by certified mail, or by a timely admission of service in writing, on each party who appeared before the agency or the attorney of record. However, neither LIRC nor USF Holland argue that there was improper service or that proof of service must be filed. We take this as a concession that the court's decision cannot be affirmed on either of these grounds.

       Wisconsin Stat. § 227.57(4)-(8) provides:
      (4) The court shall remand the case to the agency for further action if it finds that either the fairness of the proceedings or the correctness of the action has been impaired by a material error in procedure or a failure to follow prescribed procedure.
      (5) The court shall set aside or modify the agency action if it finds that the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action, or it shall remand the case to the agency for further action under a correct interpretation of the provision of law.
      (6) If the agency's action depends on any fact found by the agency in a contested case proceeding, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record.
      (7) If the agency's action depends on facts determined without a hearing, the court shall set aside, modify or order agency action if the facts compel a particular action as a matter of law, or it may remand the case to the agency for further examination and action within the agency's responsibility.
      (8) The court shall reverse or remand the case to the agency if it finds that the agency's exercise of discretion is outside the range of discretion delegated to the agency by law; is inconsistent with an agency rule, an officially stated agency policy or a prior agency practice, if deviation therefrom is not explained to the satisfaction of the court by the agency; or is otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.

       Wisconsin Stat. § 227.53(2) provides:
      Every person served with the petition for review as provided in this section and who desires to participate in the proceedings for review thereby instituted shall serve upon the petitioner, within 20 days after service of the petition upon such person, a notice of appearance clearly stating the person's position with reference to each material allegation in the petition and to the affirmance, vacation or modification of the order or decision under review.

       The supreme court has more recently explained that subject matter jurisdiction is conferred by the article VII, section 8 of the Wisconsin Constitution, and, in Wisconsin, "no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever." Village of Trempealeau v. Mikrut, 2004 WI 79, ¶ 8, 273 Wis. 2d 76, 681 N.W.2d 190 (citations omitted).
      [A] circuit court's ability to exercise the subject matter jurisdiction vested in it by the constitution may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction in individual cases.... [Fjailure to comply with a statutory mandate pertaining to the exercise of subject matter jurisdiction may result in a loss of the circuit court's competency to adjudicate the particular case before the court.

        Id., ¶ 9 (citations omitted).
      Such noncompliance "is not 'jurisdictional' in that it does not negate the court's subject matter jurisdiction." Id. (citations omitted). Not all defects in statutory procedure affect the circuit court's competency to proceed; whether a particular requirement has an effect on the court's competency is a question of statutory construction. Id., ¶¶ 10-11.
      In the context of Wis. Stat. ch. 227, the time limits for filing the petition for judicial review have been held to affect the circuit court's competency to proceed. Currier v. DOR, 2006 WI App 12, ¶¶ 6 n.2, 23, 288 Wis. 2d 693, 709 N.W.2d 520. Previously courts used the term "lack of subject matter jurisdiction" to explain the consequences of a failure to comply with the statutory time period for filing a petition for judicial review. See, e.g., Kegonsa Joint Sanitary Dist. v. City of Stoughton, 87 Wis. 2d 131, 149-51, 274 N.W.2d 598 (1979).

       Wisconsin Stat. § 227.19(3), enacted by 1945 Wis. Laws, ch. 511, § 23 contained the words "and directly affected" after the word "aggrieved." The words "and directly affected" were removed by 1975 Wis. Laws, ch. 414, § 22. This deletion is not significant to our analysis.

       The original enactment of Wis. Stat. ch. 227 did not contain a predecessor to Wis. Stat. § 227.56(3). That was added by 1945 Wis. Laws, ch. 511, § 23, as Wis. Stat. § 227.19(3), and provided:
      [A]ny respondent who has served such notice may move to dismiss the petition as filed upon the ground that such petition, upon its face, does not state facts sufficient to show that the petitioner named therein is aggrieved.... If so amended the court may consider and pass upon the validity of the amended petition without further or other motion ....
      At the same time, the first sentence of Wis. Stat. § 227.16(1) was amended to add "the facts showing that petitioner is aggrieved and directly affected by the decision." 1945 Wis. Laws, ch. 511, § 19.
      Ralph M. Hoyt, who introduced the bill that eventually became Wis. Stat. ch. 227, commented in a law review article that the soon to be enacted Wis. Stat. § 227.19(3) (1945) did not appear to be necessary:
      It has already been suggested by counsel for the Public Service Commission that there should be a provision for motions in the circuit court to dismiss appeals where the appellant is claimed to have insufficient interest to authorize the appeal. While the need for such a provision would appear to be doubtful in view of the fact that motions of this kind have always been entertained in the Supreme and Circuit Courts without the aid of any statute [footnote deleted], nevertheless this and other serious proposals for improvement of the act should receive careful consideration by committees of the bar and of the legislature, to the end that in Wisconsin the administration of justice in the field of administrative law may attain the maximum of effectiveness and fairness.
      Ralph M. Hoyt, The Wisconsin Administrative Procedure Act, 1944 Wis. L. Rev. 214, 239 (1944).
      As we have noted in footnote 6 above, the "and directly affected" language was subsequently removed from Wis. Stat. § 227.19(3) (1973), and the same language was removed from Wis. Stat. § 227.16 (1973). 1975 Wis. Laws, ch. 414, §§ 20, 22.

       Supreme Court Order 03-06, § 2, 278 Wis. 2d xii, xiv (eff. July 1, 2005) repealed and recreated Wis. Stat. § 802.05(3) (2003-04) so that it is now located at Wis. Stat. § 802.05(4).

       In contrast to Wis. Stat. § 227.53(1)(b), Wis. Stat. § 227.56(3) does give express notice that a circuit court may sua sponte dismiss an amended petition for failure to state facts that show the petitioner is aggrieved, without a further motion from the respondent, when the petitioner has already heen put on notice through the respondent's first motion that the petition is deficient and has had one opportunity to amend.

       LIRC argues in its brief that Jackson could have requested leave to amend, but does not explain how Jackson was to know that the issue of the petition's adequacy was under consideration by the court.

       As noted in paragraph 5, LIRC's letter to the court requesting a briefing schedule on the merits indicates that it decided not to move to dismiss the petition.


source: Caselaw Access Project

author: KESSLER, J.

license: Public Domain

text:
    James Root, Plaintiff-Appellant, v. John T. Saul, Defendant-Respondent, Blue Cross & Blue Shield United of Wisconsin, Defendant, Liberty Mutual Insurance Co., Intervenor-Defendant-Respondent.
    Court of Appeals

      No. 2005AP562.

      Submitted on briefs March 7, 2006.

      Decided May 2, 2006.

    2006 WI App 106
    (Also reported in 718 N.W.2d 197.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Thomas E. Hayes of Law Offices of Thomas E. Hayes, of Milwaukee.
    On behalf of the defendant-respondent and intervenor-defendant-respondent, the cause was submitted on the brief of W. Ted Tornehl of Borgelt, Powell, Peterson & Frauen, S.C., of Milwaukee.
    Before Fine, Curley and Kessler, JJ.
   KESSLER, J.

¶ 1. James Root appeals from a judgment entered in favor of defendants John T. Saul, Blue Cross & Blue Shield United of Wisconsin and Liberty Mutual Insurance Co. (collectively, "Saul"). Root argues, as he did in a post-verdict motion, that he is entitled to a new trial in the interest of justice and based on the following errors: (1) the trial court denied Root's request to instruct the jury on provocation as a bar to a self-defense theory; and (2) the special verdict form was confusing. We conclude that the real controversy was not fully tried because the jury was not instructed that the privilege of self-defense may be lost where the person claiming the privilege was the initial aggressor when that person had not taken action to withdraw from the conflict and made that intent to withdraw known to the other party. Therefore, exercising our Wis. Stat. § 752.35 (2003-04) discretionary power of reversal, we reverse and remand for a new trial. Having reversed on that basis, we decline to address whether alleged errors in the special verdict form would also require reversal. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

BACKGROUND

¶ 2. This is a personal injury case that arose out of a physical altercation that Root and Saul had during a football game party at a third man's house. According to trial testimony, six friends — Root, Saul and four other men — were watching a football game in the television room. Saul testified that he and Root sat next to each other and had "nice, friendly conversation on and off' during the first half of the game. However, when the second half started, Saul and Root had a disagreement over Root's cigar smoke.

¶ 3. Saul testified that he asked Root three times not to smoke his cigar in the room where they were watching the game. Then, according to Saul, Root exhaled a puff of smoke in Saul's direction. Saul changed seats, but the smoke from the cigar still bothered him. Saul said that after that "there were some words exchanged" between him and Root. Saul testified that he told Root to "shut up" numerous times and specifically told Root to "shut up" after Root made a comment about Saul's daughters. Eventually, Saul got up from his chair, walked to the back of Root's chair, watched Root "flailing his head back and forth like this with kind of a grin on his face" and Saul then slapped Root "across the cheek and the lips." Saul returned to his chair, which was located approximately six feet away.

¶ 4. Saul testified that he sat in his chair for "between a minute and two minutes" and that Root then quickly walked toward him. Saul stood up. Saul said Root "either attempted to grab or push me with his right hand" and that "as soon as [Root's] finger tips brushed my shirt... I slapped his hand away." Saul said Root came back toward him and stumbled a little. Saul then put Root in a headlock. Saul testified: "The reason I put him in a headlock right away is because I felt, first of all, threatened or the possibility existed that something was going to happen to escalate it. And secondly, my thought was somebody is going to get hurt here and I tried to restrain him."

¶ 5. Although witness accounts differed, Saul claims that he and Root crashed into a table. Saul said he prevented them from falling. He denied choking or kicking Root. Saul admitted that after he stopped the two of them from falling, Root said something to the effect of "thanks a lot, I think you hurt my leg."

¶ 6. Root's testimony differed from Saul's in some respects. Root testified that when the two exchanged words, Saul was calling Root names, such as "idiot," "stupid," "loser" and others. Root said that when Saul kept calling him names, Root said Saul should "go home and take it out on your own kids." Root testified that Saul then walked behind Root, put his hands on Root's shoulders, rubbed his shoulders for about ten to fifteen seconds and said: "[C]ome on, Jim, just take it easy now. You know, everything is okay, just relax." Root said he "assumed everything was over" and that he was surprised when he was "smashed in the face with a fist" that he "never saw ... coming." Root said that his head was knocked to one side and that his jaw was sore for a week as a result of the blow.

¶ 7. Root said that Saul then returned to his recliner, and Root, within half a minute, got up and walked toward Saul. Root said he again told Saul to "go home and take it out on your own kids" and that Root never made a fist or threatened to strike Saul. Root did admit that he poked Saul in the chest. Root said Saul then "grabbed both of my wrists" and "forced me backwards into the living room." Root said he then noticed Saul's foot movement, saw a kicking motion and felt a "horrific impact on my right leg. . . my right leg just flew out from underneath me and I crashed down on my right shoulder on a table that was right there." Root testified that after the kick, Saul got Root in a headlock and "began crushing my throat with a choking motion" and did not release Root until fifteen seconds later, when the homeowner "pulled [Saul] off." Root stated that he returned to his chair and said "you just about broke my leg."

¶ 8. Root suffered a torn ligament in his knee, which required surgery. He sued Saul on two theories: battery and negligence. Root sought compensatory and punitive damages.

¶ 9. Prior to trial, the parties submitted proposed jury instructions. After the close of testimony, the parties and the trial court had a jury instruction conference, off the record. The next day, the parties made a record about the conference. According to that record, Root asked the trial court to give Wis JI— Criminal 815, discussing when the privilege of self-defense is not available to one who provokes an attack, and how to regain the privilege. The jury instruction provides:

Provocation
You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self-defense against that attack.
[USE ANY OF THE FOLLOWING PARAGRAPHS THAT ARE SUPPORTED BY THE EVIDENCE.]
[However, if the attack which follows causes the person reasonably to believe that he is in imminent danger of death or great bodily harm, he may lawfully act in self-defense. But the person may not use or threaten force intended or likely to cause death or great bodily harm unless he reasonably believes he has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.]
[A person who provokes an attack may regain the right to use or threaten force if the person in good faith withdraws from the fight and gives adequate notice of the withdrawal to his assailant.]
[A person who provokes an attack whether by lawful or unlawful conduct with intent to use such an attack as an excuse to cause death or great bodily harm to another person is not entitled to use or threaten force in self-defense.]

Id. (footnotes omitted).

¶ 10. The trial court refused to give the instruction, citing three reasons: (1) Root waived the right to submit the instruction because he failed to request the instruction as directed in the Scheduling Order; (2) it was a criminal jury instruction rather than a civil jury instruction; and (3) there was an insufficient factual basis in the record to warrant giving the instruction.

¶ 11. The jury was instructed and deliberated. Answering a series of questions in the special verdict, the jury found that Saul did not batter Root, and that Saul's actions were taken in self-defense. The jury found that both Root and Saul acted negligently, with sixty-five percent of the negligence attributable to Root and thirty-five percent attributable to Saul.

¶ 12. Root filed a post-verdict motion seeking a new trial based on two alleged trial court errors: (1) failing to give Wis JI — Criminal 815; and (2) using an unfairly crafted special verdict form. Root also asked the trial court to invoke its discretionary power to order a new trial in the interest of justice pursuant to Wis. Stat. § 805.15(1). The trial court denied the motion and this appeal followed.

DISCUSSION

¶ 13. A trial court "has broad discretion in deciding whether to give a particular jury instruction." State v. Fonte, 2005 WI 77, ¶ 9, 281 Wis. 2d 654, 698 N.W.2d 594. The trial court "must exercise its discretion to 'fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence.'" Id. (citation omitted). On appeal, we will reverse and order a new trial "[o]nly if the jury instructions, as a whole, misled the jury or communicated an incorrect statement of law ...." State v. Laxton, 2002 WI 82, ¶ 29, 254 Wis. 2d 185, 647 N.W.2d 784. " 'If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist.'" Id. (citation omitted). We independently review whether a jury instruction is an accurate statement of the law applicable to the facts of a given case. State v. Groth, 2002 WI App 299, 8, 258 Wis. 2d 889, 655 N.W.2d 163.

¶ 14. Root argues that the trial court erroneously exercised its discretion because it refused to instruct the jury that when one provokes an attack, he cannot rely on self-defense as a defense to a personal injury claim. Root contends that where the undisputed facts show that Saul was the initial physical aggressor, the jury should have been instructed to consider "whether Root's actions, though minimal, were provoked by Saul" and whether this provocation should prohibit Saul "from asserting the privilege of self-defense."

¶ 15. As noted, when the trial court denied Root's request for Wis JI — Criminal 815, it offered three reasons for denying the request: (1) Root waived the right to submit the instruction because he failed to request the instruction as directed in the Scheduling Order; (2) it was a criminal jury instruction rather than a civil jury instruction; and (3) there was an insufficient factual basis in the record to warrant giving the instruction. When Root filed a motion for a new trial based on the failure to give the instruction, the trial court reexamined its reasons and ultimately disavowed the first two.

¶ 16. Specifically, the trial court withdrew its ruling that Root had waived the right to request Wis JI — Criminal 815, stating: "I hereby withdraw my previous ruling that the Plaintiff waived his objection .... I'm not going to base my decision on the principle of waiver." With respect to its initial decision that the jury instruction was inapplicable because this was a civil case, the trial court stated: "I do not recall giving that as a reason for refusing the instruction. If I did, I think that was mistaken, that's not a reason, and I withdraw any such ruling. There is no question that [Wis JI— Criminal] 815 accurately states the law."

¶ 17. Despite rejecting two of its previous reasons, the trial court reaffirmed its decision that there was no basis to instruct the jury using Wis JI — Criminal 815, on grounds that the facts did not support it. In analyzing when the jury instruction should be used, the trial court considered the related criminal statute addressing self-defense, Wis. Stat. § 939.48, which provides:

Self-defense and defense of others. (1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
(2) Provocation affects the privilege of self-defense as follows:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.

(Emphasis added.) The trial court found "that the conduct complained of, and I believe that I did it construing the evidence most favorable to the Plaintiff, was not such conduct." We interpret the trial court's statement as a finding that Saul's slapping Root's face was not "conduct of a type likely to provoke others to attack...." See id.

A. Waiver

¶ 18. In urging us to affirm, Saul argues that Root waived his right to request Wis JI — Criminal 815 by not complying with a pre-trial scheduling order that required each party to include in its pre-trial report a list of proposed jury instructions. Whether Root was warned that failure to include a jury instruction would bar him from requesting it later is not clear from the record. What is clear is that the trial court, which had the best access to all the facts, ultimately found that Root had not waived his right to request a jury instruction. This finding is not clearly erroneous. Therefore, we reject Saul's invitation to rely on waiver as a basis to affirm the trial court's order denying Root's motion for a new trial.

B. General applicability of Wis JI — Criminal 815

¶ 19. Next, we consider whether Wis JI — Criminal 815 can be used in a civil case. Selecting jury instructions is the trial court's role, see State v. Sartin, 200 Wis. 2d 47, 52-53, 546 N.W.2d 449 (1996), and the lack of a pattern jury instruction for a particular case does not alter that role. Indeed, even where there is a pattern jury instruction, it remains the trial court's responsibility to properly instruct the jury, even if that means varying from the pattern jury instruction when "the situation envisioned by such instruction varies from the situation at issue." See State v. Wolter, 85 Wis. 2d 353, 370, 270 N.W.2d 230 (Ct. App. 1978).

¶ 20. Thus, the appropriate question is not whether there is an existing pattern jury instruction on provocation by the defendant for use in civil cases, but whether the general rule of law addressed by Wis JI — Criminal 815 is applicable in civil cases. It is generally recognized in civil cases that a defendant who is an aggressor cannot justify an assault and battery "on the ground of self-defense, unless he in good faith withdrew from the aggression." See 6 Am. Jur. 2d Assault and Battery § 135 (1999); see also Penn v. Henderson, 146 P.2d 760, 766 (Or. 1944) (defendant who is aggressor cannot justify his actions on self-defense grounds "unless he in good faith first withdrew from such aggression"); Juarez-Martinez v. Deans, 424 S.E.2d 154, 158 (N.C. Ct. App. 1993) (examining both criminal and civil law because "the tort rules on self-defense are virtually identical to those of the criminal law," court held that " 'the right of self-defense is only available to a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so.'") (quoting State v. Marsh, 237 S.E.2d 745, 747 (N.C. 1977)).

¶ 21. Nordmann v. International Follies, Inc., 250 S.E.2d 794 (Ga. Ct. App. 1978), applied this rule. The plaintiff was a patron at a nightclub. Id. at 796. As the plaintiff left the club, an employee "confronted him as he was preparing to leave, called him and his companions 'punks,' and slapped him across the face." Id. The plaintiff responded by tackling the employee. Id. The employee then pulled out a gun and struck the plaintiff in the head with it, rendering him unconscious. Id. The plaintiff sued the employee, alleging the employee had committed a battery. Id. At trial, the employee successfully defended the claim based on self-defense. Id.

¶ 22. After a verdict was rendered for the defendant, the plaintiff appealed. Id. The Georgia Court of Appeals reversed on grounds that the jury had not been properly instructed. Id. at 797. Specifically, the court held that the jury should have been instructed consistent with the principle that

"The doctrine of self-defense may not be successfully invoked, where defendant's own acts brought on the difficulty with plaintiff, as where defendant was the aggressor or was himself not free from fault. Before his right to self-defense will revive, one, who is at fault in bringing on the difficulty or in voluntarily entering into it, must retreat in good faith, intending to abandon it."

Id. (quoting 6A C.J.S. Assault and Battery § 19).

¶ 23. Wisconsin's appellate courts have not addressed application of this general rule. However, the supreme court in Crotteau v. Karlgaard, 48 Wis. 2d 245, 179 N.W.2d 797 (1970), did address a related issue: whether self-defense is available as an affirmative defense to one who was provoked by words. In Crotteau, two farmers — Crotteau and Karlgaard — had an argument when Karlgaard had difficulty driving his tractor. Id. at 246-47. Crotteau yelled at Karlgaard. Id. at 247. Karlgaard responded by shaking his finger and yelling an obscenity. Id. A short time later, the two men approached one another. Id. Crotteau pointed at his own tractor and told Karlgaard, "if you want to drive the son of a bitch, go ahead and drive it." Id. Karlgaard then struck Crotteau in the jaw, injuring him. Id.

¶ 24. The trial court directed a verdict on liability against defendant Karlgaard. Id. at 247-48. The supreme court affirmed, concluding that where the plaintiff provokes an attack with words alone, a civil assault and battery is not justified. Id. at 250. The supreme court cited with approval 6 Am. Jur. 2d Assault and Battery § 161, for the proposition that "[b]efore self-defense can be used as a justification for a civil assault and battery it must reasonably appear that the defendant was in danger of bodily harm." Crotteau, 48 Wis. 2d at 249-50. The court further held that evidence that Crotteau provoked the attack could not be considered in mitigation of compensatory damages, but could properly be considered on the question of punitive damages. Id. at 250.

¶ 25. Crotteau is not directly on point here, because the instant case involves a slap (by Saul), followed by a poke (by Root), followed by kicking and a headlock (by Saul). No one argues that words alone provoked the physical altercation; at issue is whether the jury should have been instructed that it could find that Saul lost the right to assert a self-defense privilege when he began the physical altercation by slapping Root. Nonetheless, Crotteau is instructive because it recognized that provocation is an issue when considering self-defense, and because it looked to the general principles articulated in 6 Am. Jur. 2d Assault and Battery to determine the proper consideration of provocation under the facts presented.

¶ 26. Similarly, we have considered a variety of sources that discuss the applicable rule in civil cases where a defendant who was the initial physical aggressor seeks to avoid liability based on self-defense. We conclude that the law in Wisconsin is consistent with this general rule: a defendant who is the initial aggressor can lose the right to claim self-defense, unless the defendant abandons the ñght and gives notice to his adversary that he has done so. See Juarez-Martinez, 424 S.E.2d at 158.

¶ 27. We are not prepared to say that this rule is precisely the same as that articulated in Wis JI—Criminal 815, which is based on Wis. Stat. § 939.48, the specific criminal statute that addresses self-defense. However, we recognize that the rules are similar.

C. Whether the facts required an instruction on provocation

¶ 28. Having concluded that Wisconsin law provides that a civil defendant may lose his right to claim self-defense if he was the initial aggressor, the next question is whether the facts of this case justified a jury instruction that incorporated this rule. The trial court's ultimate reason for denying Saul's request for Wis JI — Criminal 815 was that the facts did not support it. Specifically, the trial court found that the instruction was not applicable because Saul's conduct was not "of a type likely to provoke others to attack him. . . ." See Wis. Stat. § 939.48(2)(a). This finding is clearly erroneous. Root testified that Saul "smashed [him] in the face with a fist." Although Saul characterized it differently, he admitted that he slapped Root in the face. Intentionally slapping or hitting someone in the face — acts that can be a battery — is certainly conduct that can provoke others to attack. Under these facts, a jury could find that Saul was the initial physical aggressor. An instruction indicating that self-defense may not be available to Saul should have been given.

D. Appropriate remedy

¶ 29. Because the trial court erroneously exercised its discretion when it declined to instruct the jury that Saul may have lost his right to claim self-defense, we must consider the appropriate remedy. Saul correctly notes that before we order a new trial based on erroneous jury instructions, we must find that the error affected the substantial rights of a party such that there is a reasonable possibility that the error contributed to the outcome. See Nommensen v. American Cont'l Ins. Co ., 2001 WI 112, ¶ 52, 246 Wis. 2d 132, 629 N.W.2d 301. However, we do have discretionary authority under Wis. Stat. § 752.35 to order a new trial if the real controversy has not been fully tried, and if we reverse on that theory, we need not determine whether the outcome of the trial would have been different on retrial. Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990).

¶ 30. In Vollmer, the supreme court recognized that its broad discretionary power pursuant to Wis. Stat. § 751.06 was the same power granted to the court of appeals via Wis. Stat. § 752.35. Vollmer, 156 Wis. 2d at 19. Vollmer held that discretionary reversal could be exercised where a jury instruction "obfuscates the real issue or arguably caused the real issue not to be tried ...." Id. at 22. Similarly, in Air Wisconsin, Inc. v. North Cent. Airlines, Inc., 98 Wis. 2d 301, 296 N.W.2d 749 (1980), the court concluded that discretionary reversal was appropriate where the use of an erroneous jury instruction prevented a "full, fair trial of the issues ...." Id. at 318. More recently, in State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, the court held that deficiencies in the jury instructions resulted in a controversy not being fully tried, therefore warranting a new trial. Id., ¶ 49.

¶ 31. We conclude that in this case, a new trial is warranted because the jury was not instructed that Saul's self-defense theory may be unavailable if he was the initial aggressor. Without this instruction, the real controversy — whether Saul acted in self-defense when he injured Root — could not be tried. Therefore, we reverse and remand for a new trial. On retrial, the trial court should instruct the jury consistent with this opinion.

By the Court. — Judgment reversed and cause remanded for further proceedings consistent with this opinion.

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

       Root argues that the fact the jury answered the question on self-defense after determining that there had been no battery was evidence that the jury was confused. Because we are reversing based on our determination that the real controversy was not fully tried because a provocation jury instruction was not given, we do not consider the special verdict form or the logic of the jury's answers to individual questions.

       Wisconsin Stat. § 752.35, provides:
      Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.


author: CANE, C.J.

text:
    Delvin E. Bauer and Arlene A. Bauer, Plaintiffs-Co-Appellants, Montana State Fund, a foreign insurance corporation, Plaintiff, v. Century Surety Company, a foreign insurance corporation, Defendant-Appellant, Great West Casualty Company, a foreign insurance company, Defendant-Respondent, James F. Johnston d/b/a Johnston Crane Company, a domestic company, Defendant.
    Court of Appeals

      No. 2005AP1218.

      Submitted on briefs February 27, 2006.

      Decided May 2, 2006.

    2006 WI App 113
    (Also reported in 718 N.W.2d 163.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Susan R. Tyndall of CMT legal Group, Ltd. of Waukesha.
    On behalf of the plaintiffs-co-appellants, the cause was submitted on the brief of James A. Pitts of Schoone, Leuck, Kelley, Pitts & Knurr, S.C. of Racine.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael R. Vescio of O'Hagan, Smith & Amundsen, LLC of Milwaukee.

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

       Petition to review denied 9-11-06.

   CANE, C.J.

¶ 1. Century Surety Company and Delvin and Arlene Bauer (collectively, Century) appeal the circuit court's summary judgment in favor of Great West Casualty Company, which stated that Great West had no duty to defend or indemnify James Johnston d/b/a Johnston Crane Company. The sole issue is whether Johnston was in the process of unloading a turbine from Bauer's truck at the time the accident occurred and therefore became an operator of Bauer's truck. Because we conclude that Johnston became an operator of Bauer's truck at the time of the accident, we reverse the summary judgment and remand the action for further proceedings.

BACKGROUND

¶ 2. Delvin Bauer was an interstate truck driver who transported a turbine to a Wisconsin Public Service Corporation plant on the back of a flatbed truck owned by his employer, C.W. Enterprises, Inc. Upon arrival at the plant, Bauer parked his truck outside of the main gate and prepared the turbine for unloading by uncovering and unfastening it from the truck.

¶ 3. Johnston arrived with a truck crane he owned and operated and parked it in front of Bauer's truck and underneath overhead power lines. While Johnston was preparing to switch the fitting attachment at the end of the crane arm with another that would ease the unloading of the turbine from the flatbed truck, he raised the crane into the power lines, which caused explosions and sent an electrical surge through Bauer, injuring him.

¶ 4. The Bauers brought suit against Johnston and his insurer Century Insurance Company. They also sued Great West, who provided commercial automobile and general liability insurance coverage to C.W. Enterprises, on the theory that Johnston became an operator of Bauer's truck by unloading it. Great West moved for summary judgment on the issue of insurance coverage, contending that no "operation" occurred that imposed coverage, pursuant to Wis. Stat. § 194.41. The circuit court granted summaiy judgment, concluding that Johnston was not operating Bauer's truck when the power line incident occurred. The court ruled:

I feel that there has to be something more active and actual as to moving the cargo off the flatbed truck. I understand the complete operation doctrine gives a broader definition to what can be included, however, I'm convinced that in this situation, these vehicles were not even in their final positions for unloading to commence and that the changing of the fitting at the end of the boom was merely prepatory and in no way was Johnston operating the Bauer vehicle. I think that was to come after the gates were open, after the vehicles were driven in and then there would be active and actual unloading procedures commenced by Johnston to lift the turbine engine off the flatbed truck.

STANDARD OF REVIEW

¶ 5. We review summary judgment without deference, using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08. Our summary judgment methodology is well documented, and it will not be repeated here. See, e.g., Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997). The issue on appeal involves application of a statute to an undisputed set of facts, which is a question of law that we review independently. Nichols v. Nichols, 162 Wis. 2d 96, 103, 469 N.W.2d 619 (1991).

DISCUSSION

¶ 6. Century contends that Great West is obligated to provide coverage because Johnston's actions were part of the unloading process. It is undisputed that if Johnston was loading or unloading the flatbed truck when the power line incident occurred, Great West must provide insurance coverage to Johnston under the policy. See Mullenberg v. Kilgust Mech., Inc., 2000 WI 66, 235 Wis. 2d 770, 612 N.W.2d 327.

¶ 7. In Mullenberg, a case also involving Great West as an insurer, a truck driver, Roger Mullenberg, was standing near his truck while an employee of Kilgust Mechanical was unloading the truck's trailer. Id., ¶ 6. Pipes rolled off the trailer, striking Mullenberg and injuring him. Id. Mullenberg brought a claim for damages against Kilgust. Kilgust subsequently im-pleaded Great West, Mullenberg's insurer, arguing that Great West provide primary coverage to the Kilgust employee because during the accident he was operating the vehicle insured by Great West. Id., ¶ 7.

¶ 8. Great West contended that it was not required to defend or indemnify Kilgust because its policy precluded coverage for persons loading or unloading the insured truck. Id., ¶ 8. Our supreme court held that the policy language that Great West cited was contrary to Wis. Stat. § 194.41, and therefore Great West was required to provide coverage. The court reasoned:

It is undisputed that the endorsement provision in Great West's policy incorporates Wis. Stat. § 194.41. Section 194.41 requires a motor carrier to be covered by an insurance policy that will pay for damages recoverable "against the owner or operator" because of "negligent operation." Kilgust and [its insurer] contend that by unloading the truck, Kilgust's employee was engaged in "operation" of the truck, and that § 194.41 therefore mandates coverage.
Wisconsin Stat. ch. 194 does not define "operation" or "operator." These words must be read in the context in which they are used in order to promote the legislature's objective in enacting the statute. Lukaszewicz v. Concrete Research, Inc., 43 Wis. 2d 335, 342, 168 N.W.2d 581 (1969) (interpreting the word "operate" in the omnibus statute). As our cases have noted, "Mperate has varying meanings according to context which primarily determines its meaning." Id. In construing ch. 194 we must follow the legislative intent set forth in Wis. Stat. § 194.02. This section requires that ch. 194 be given "the most liberal construction to achieve the aim of a safe, competitive transportation industry." Wis. Stat. § 194.02.

Id., ¶¶ 11-12 (emphasis added).

¶ 9. The court went on to explain that, given the legislature's intent, the term "operation" included loading and unloading vehicles. The court stated:

In Wiedenhaupt v. Vander Loop, 5 Wis. 2d 311, 317, 92 N.W.2d 815 (1958) we examined the phrase "negligent operation" in Wis. Stat. § 260.11 (1957) and held that "[t]he word 'operation' is not to be restricted to only a moving vehicle". In Lukaszewicz, we noted that if the legislature intended the statute to cover only riding or driving on the highway, it would not have used the broader word "operation." Lukaszewicz, 43 Wis. 2d at 341-42. The reasoning in these cases is applicable to Wis. Stat. § 194.41. A motor carrier by definition undertakes to transport passengers and property. Wis. Stat. § 194.01(1). Inherent in this task is that the carrier will be loaded and unloaded. Loading and unloading involves repeated, frequent contact with the motor carrier. Within this framework and considering the subject matter of Wis. Stat. ch. 194, as well as the legislature directive to construe ch. 194 liberally to protect the shipping public as well as the traveling public, we conclude that "negligent operation" encompasses loading and unloading.

Id., ¶ 15 (footnote omitted). The court also noted that a third party operator, such as Johnston here, can be an operator of a such a vehicle, stating, "Where the operation at issue is loading and unloading, we conclude that 'operator' includes a third party permissively unloading the vehicle." Id., ¶ 17.

¶ 10. Wisconsin has expressly adopted the complete operation doctrine to determine which loading and unloading actions constitute an operation for insurance coverage purposes. Komorowski v. Kozicki, 45 Wis. 2d 95, 105, 172 N.W.2d 329 (1969). The court noted:

Under the so-called "complete operation" doctrine ... the "loading and unloading" clause covers the entire process involved in the movement of goods from the moment when they are given into the insured's possession until they are turned over at the place of destination to the party to whom delivery is to be made, and for all practical purposes, any distinction between "unloading" and "delivery," and between "loading" and "preparatory actions," is not considered.

Id. at 102 (emphasis added) (quoting Annot. 95 A.L.R.2d 1112, 1129 (1964) (superseded by Kristine Cordier Karnezis, Annotation, Risks Within "Loading and Unloading" Clause of Motor Vehicle Liability Insurance Policy, 6 A.L.R.4th 686 (1981)).

¶ 11. In its express adoption of the complete operation doctrine, the court noted that it actually adopted the complete operation doctrine sub silentio in a preceding case, Hardware Mut. Cas. Co., v. St. Paul-Mercury Indem. Co., 264 Wis. 230, 231, 58 N.W.2d 646 (1953). In Hardware Mutual, a deliveryman double parked his truck and opened a hatchway in the sidewalk in preparation of unloading beer kegs from his truck to a customer's basement. Id. Subsequent to opening the hatchway but before actually removing the beer kegs from the truck, the driver moved his truck so another vehicle could pass. Id. While the driver moved his truck, a pedestrian fell through the hatchway and was injured. Id.

¶ 12. The issue was whether the beer distributor's automobile insurance policy was the primary source of coverage for the pedestrian's injuries because it covered loading and unloading of the truck. Id. at 232. The court stated that opening the hatchway was "prepatory" to unloading the truck and delivering the beer kegs. Id. at 234. The court explained, "the opening of the trap door by the driver was properly and necessarily the actual commencement of the physical operation of unloading the beer." Id. The court also noted the opening of the hatchway was "an essential part of the unloading operation." Id.

¶ 13. Here, an examination of both Bauer's and Johnston's actions reveals that the unloading process began when Johnston raised the crane into the power lines. Bauer and Johnston took several "preparatory" steps for unloading the turbine from the truck. Bauer arrived at the destination and uncovered and unfastened the turbine, so it could be lifted from the trailer. Johnston then moved his truck crane in front of Bauer's truck in anticipation of moving the turbine. Johnston next raised the crane boom to change to an attachment that would allow him to lift the turbine. Like lifting the hatchway in Hardware Mutual, changing the attachment was "an essential part of the unloading operation." Thus, Johnston's actions were an operation for insurance coverage purposes.

¶ 14. Great West argues, however, that because Johnston had not interacted with Bauer's truck, the unloading process had not commenced. Great West relies on Wisconsin case law that has held a party becomes a participant in the loading or unloading operation when the party "actively" or "actually" participates. See, e.g., Continental Nat'l Ins. Co. v. Carriers Ins. Co., 55 Wis. 2d 533, 537, 200 N.W.2d 584 (1972). Thus, Great West contends, "Johnston's involvement with [Bauer's truck] was not 'active' or 'actual.' Mr. Johnston's activities up to the time of the accident included only interaction with the crane and its boom; nothing he did acted in any way" with the truck's cargo.

¶ 15. Looking closer at Continental National, we are not convinced by Great West's argument. In Continental National, a delivery person was delivering beef to a grocer when he fell and injured himself due to a negligently maintained unloading facility and ramp. The issue was whether the grocer was a participant in the unloading of the delivery person's vehicle, constituting use or operation for insurance coverage purposes. The court held:

[N]o employee was present or involved with the unloading. No employee of [the grocer] used the ramp, much less the truck. It cannot be said that [the grocer] actively engaged in the unloading operation or the use of the truck simply because they furnished the unloading ramp.

Id. at 540.

¶ 16. The situation in Continental National greatly differs from the present circumstances. Here, Johnston was actively involved in the unloading process. As previously stated, Bauer had moved his truck into a position for unloading, and he uncovered and unfastened the turbine. Johnston moved his truck crane into position to unload the truck. He then intended to make the necessary change to the attachment, so he could properly unload the turbine. In sum, Bauer and Johnston were actively taking steps to unload the turbine from Bauer's truck.

By the Couri.-Judgment reversed and cause remanded for further proceedings.

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