author: DEININGER, PJ.

text:
      J.W., Plaintiff-Respondent, v. B.B., M.D., et. al., Defendant-Appellant. [Case No. 2004AP9.] G.M., Plaintiff-Respondent, v. B.B., M.D., et al., Defendant-Appellant. [Case No. 2004AP11.]
    Court of Appeals

      Nos. 2004AP9, 2004AP11.

      Submitted on briefs November 8, 2004.

    Decided May 26, 2005.

    2005 WI App 125
    (Also reported in 700 N.W.2d 277.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John W. Markson of Bell, Gierhart & Moore, S.C., Madison.
    On behalf of the plaintiffs-respondents, the cause was submitted on the briefs of Eric J. Haag of Gingras, Cates & Luebke, S.C., Madison.
    Before Deininger, RJ., Vergeront and Higgin-botham, JJ.
   DEININGER, PJ.

¶ 1. We granted a physician leave to appeal two orders that compel him to respond to certain discovery requests from the plaintiffs in these two medical malpractice actions. The physician claims the trial court erred when it ordered him to disclose his sexual orientation, his employment history and any prior complaints against him involving conduct similar to what the plaintiffs have alleged in this action. We conclude the trial court did not erroneously exercise its discretion in ordering disclosure of the physician's employment history and prior complaints regarding his practice of medicine. We also conclude, however, that the court erred in ordering the physician to disclose his sexual orientation because it is not relevant to the issues in this case and is not reasonably calculated to lead to the discovery of admissible evidence.

BACKGROUND

¶ 2. The plaintiffs filed a complaint alleging the physician was "negligent in his care and treatment" for performing digital-rectal prostate exams on them during pre-employment medical examinations. They also alleged the physician failed to obtain their informed consent before performing the exams. The plaintiffs asserted that the physician told them the prostate exams were required for their employment physicals.

¶ 3. During a deposition of the physician, his attorney objected to the following questions put by plaintiffs' counsel, stating as grounds that the questions were irrelevant and not reasonably calculated to lead to the discovery of admissible evidence:

Are you aware of any complaints that any individuals made against you while you were at [a former employment] alleging inappropriate touching?
Why did you leave [employment with another health care provider]?
What is your sexual orientation, doctor?

On advice of his counsel, the physician did not answer these questions.

¶ 4. The plaintiffs filed a motion to compel discovery regarding the physician's sexual orientation, prior complaints against him and his employment history. The circuit court, citing a case that upheld the admission of evidence of a criminal defendant's homosexuality as being probative of his motive for committing the charged crime, reasoned that disclosure of the physician's sexual orientation could lead to evidence of his motive for conducting the digital-rectal exams. The court did not separately discuss the request for information regarding past complaints against the physician and his employment history. The court explained that it was not ruling on the admissibility of any of the requested information, only that the physician must respond because his responses might lead to the discovery of admissible evidence. The court also directed the parties to submit "a good, strong protective order on any answers that might be compelled."

¶ 5. The court entered orders requiring the physician to disclose: (1) his "sexual orientation"; (2) "other complaints by inmates, clients, patients, or examinees, to the effect that [he] touched them inappropriately or unnecessarily did rectal or prostate exams"; and (3) "the reasons [he] left previous professional employment." We granted the physician's petition for leave to appeal the orders compelling discovery. See Wis. Stat. § 808.03(2).

ANALYSIS

¶ 6. Whether to compel a party to disclose information requested in discovery is committed to the circuit court's discretion. See Earl v. Gulf & W. Mfg. Co., 123 Wis. 2d 200, 204, 366 N.W.2d 160 (Ct. App. 1985). Properly exercised discretion involves "a statement on the record of the trial court's reasoned application of the appropriate legal standard to the relevant facts of the case." Id. at 204-05. If the circuit court does not fully explicate its reasoning, we may "examine the record to determine whether the facts support" its decision. Id. at 205. If, however, the circuit court bases its decision on an error of law, it has erroneously exercised its discretion. Id.

¶ 7. The scope of permissible discovery in a civil suit is established by Wis. Stat. § 804.01(2)(a), which provides as follows:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party .... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The physician does not claim that any of the information he was ordered to disclose is privileged. Rather, his claim is that his sexual orientation, past complaints against him, and his employment history are not relevant to any claim or defense in these actions, and, further, that the requested information is not reasonably calculated to lead to the discovery of admissible evidence.

¶ 8. We first address the ordered disclosure of the physician's sexual orientation. Relevant evidence is evidence that has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Wis. Stat. § 904.01. The physician contends that his motive for conducting the examinations at issue is of no consequence to the determination of the plaintiffs' malpractice and lack of informed consent claims because both causes of action sound in negligence, where the only question is whether his conduct met the applicable standard of professional care. We agree.

¶ 9. The applicable three-year statute of limitations describes a medical malpractice action as one "to recover damages for injury arising from any treatment or operation performed by, or from any omission by, a person who is a health care provider." Wis. Stat. § 893.55(1). To prevail, the plaintiffs must prove that the physician committed a negligent act (or omission) that caused the plaintiffs injury or damages. Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507, 625 N.W.2d 860. The plaintiffs so allege in their first cause of action: "[the physician], through his acts and omissions, was negligent in his care and treatment of [the plaintiffs], including but not limited to his conducting of the prostate examinations," which resulted in "pain, suffering, fright, embarrassment and emotional distress" on the part of the plaintiffs.

¶ 10. The plaintiffs' allegations in this case bear some similarities to the facts in Deborah S.S. v. Yogesh, 175 Wis. 2d 436, 442-43, 499 N.W.2d 272 (Ct. App. 1993), where the plaintiff claimed a physician touched her inappropriately during a neurological examination. As in Deborah S.S., these actions were filed between two and three years after the conduct in question, and thus, any claims of medical malpractice were timely filed, but any assault or battery claims would be time-barred. See id. at 445. Unlike the plaintiff in Deborah S.S., however, the present plaintiffs do not allege the physician touched them in places or in ways that served no medical purpose or reason, such that the prostate exams were not a part of the medical treatment the physician provided. See id. at 443 (noting that "the parties agree that the acts alleged against the physician did not serve any medical reason," and thus "the physician's offending conduct was not part of the medical treatment accorded the patient."). Rather, the gravamen of the present plaintiffs' claims is that, under the applicable standard of professional care, performing digital-rectal prostate exams on healthy, twenty-five-year-old males during pre-employment physicals was "unnecessary and improper treatment," thus constituting medical malpractice. See id. at 442-43.

¶ 11. Because the plaintiffs' claims sound in medical malpractice, the fact at issue is whether the prostate exams were necessary and proper medical treatment under the circumstances. There is no dispute that the physician intended to and did perform digital-rectal prostate exams on the plaintiffs. Aside from whether the exams caused the plaintiffs any injury or damages, the only "fact of consequence" to the outcome of this litigation is whether the performance of the exams on these plaintiffs during their pre-employment physicals conformed to the requisite standard of professional care. If performing the exams constituted "unnecessary and improper" treatment under the standard of care, the physician was negligent and is liable for any injury or damages that resulted, even if his only motive for performing the exams was a good-faith belief that the exams were medically necessary and proper.

¶ 12. Conversely, if performing the exams was consistent with "the degree of care, skill, and judgment which reasonable [physicians] would exercise in the same or similar circumstances, having due regard for the state of medical science at the time plaintiff[s were] treated," the physician was not negligent and cannot be held liable for any pain, embarrassment or emotional distress the procedures may have caused. This is so even if the physician also had a non-professional motive for performing the exams. In short, the physician's motive or intent in conducting the exams is simply not relevant to the dispositive inquiry, which is solely an objective determination.

¶ 13. The plaintiffs contend, however, that "[m]o-tive evidence makes it more probable that [the physician] deviated from the standard of care by showing that his actions were incongruent with medical requirements." We reject this contention. What the physician did or did not do during the plaintiffs' pre-employment physicals will be established by the testimony of the parties. What the standard of professional care requires or permits a physician to do or not do under the circumstances will be established by the testimony of medical experts. Quite simply, the physician's motive for conducting the exams has no tendency to make it more or less probable that "his actions were incongru-ent with medical requirements" because that determination turns exclusively on a comparison of what the physician did to what a "reasonable physician" would have done "in the same or similar circumstances."

¶ 14. We reach the same conclusion regarding the plaintiffs' informed consent causes of action. The plaintiffs' claims that the physician did not obtain their informed consent prior to the digital-rectal exams are also grounded on a negligence theory. See Schreiber v. Physicians Ins. Co., 223 Wis. 2d 417, 427, 588 N.W.2d 26 (1999) (noting that "negligence — the doctor's failure to exercise reasonable care to a patient" is now the "theoretical underpinning" of the informed consent doctrine). The relevant inquiries focus on what a reasonable patient would want to know before consenting to a given procedure: "did the physician fail to give information that a reasonable patient would want to know? .... [And,] given the additional information, would the reasonable patient have acted differently than they did without the information?" Id. at 434. Again, these are objective, not subjective determinations, and they are wholly unrelated to the physician's motive for performing the exams.

¶ 15. Regarding the alleged lack of informed consent, the plaintiffs assert in their complaint that the physician "failed to properly advise them of the risks, options, alternatives, or necessity associated with" the prostate examinations. The facts of consequence in determining whether the physician performed the prostate exams without the plaintiffs' informed consent are (1) what he told them and (2) what he "should have" told them under the standard quoted in the preceding paragraph. As with the plaintiffs' malpractice claims, the physician's motive for conducting the exams, for telling the plaintiffs what he did regarding the exams, or for failing to tell them more, are simply of no consequence to the determination of the informed consent claims.

¶ 16. The plaintiffs assert that it is not they but the physician who has injected the issue of motive into this case by claiming that, in performing the digital-rectal exams, "he was fulfilling his best medical judgment." The defense of medical malpractice claims, however, routinely involves contentions that the defendant physician's conduct was consistent with accepted medical practice. The relevant and dispositive question is not whether the physician believed his actions were consistent with the standard of professional care, but whether his actions were in fact consistent with the standard. We emphasize again that, if the physician's actions fell below the requisite standard, he will be liable for damages he caused even if his motives were solely professional; he will not be liable if he did not violate the professional standard, regardless of what prompted him to provide the treatment he did. To prevail, the plaintiffs must establish that the prostate exams were "unnecessary and improper" medical treatment, Deborah S.S., 175 Wis. 2d at 443, not by establishing some improper motive on the part of the physician for performing the procedures.

¶ 17. The plaintiffs also attempt to rely on the criminal cases the circuit court cited in its ruling, and they undertake an analysis of the admissibility at trial of evidence of the physician's sexual orientation under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). The present negligence-based actions, however, bear no similarity to criminal prosecutions where, in order to prevail, the State generally must prove that a defendant's illegal conduct was intentional, and often that the defendant possessed a specific wrongful intent, such as sexual gratification or to deceive or inflict harm on the victim. As we have explained, there is no dispute in this case that the physician intentionally performed the exams in question. His civil liability for performing them does not turn on his state of mind when performing them but on whether objective standards of professional care were violated.

¶ 18. Finally, we acknowledge that, even though we have concluded the physician's sexual orientation is not "relevant to the subject matter involved" in this action and would be inadmissible at trial for that reason, the physician might still be ordered to disclose this information if it "appears reasonably calculated to lead to the discovery of admissible evidence." Wis. Stat. § 804.01(2)(a). The plaintiffs, however, have pointed to no potentially admissible evidence to which the disclosure of the physician's sexual orientation might lead. That is, the plaintiffs make no argument that learning the physician's sexual orientation is a necessary intermediate step that will permit them to discover other, potentially admissible evidence.

¶ 19. Because the physician's sexual orientation is not relevant to any claim or defense in this action, and the plaintiffs have not identified any admissible evidence to which the disclosure might lead, we conclude the circuit court erred in ordering the disclosure of the physician's sexual orientation. See Wis. Stat. § 804.01(2)(a). By analogizing these malpractice actions to criminal prosecutions and concluding that motive evidence is relevant and potentially admissible at trial, the circuit court based its decision on an error of law. The court thus erroneously exercised its discretion in ordering the physician to disclose his sexual orientation. We reverse the appealed orders insofar as they require the physician to disclose his sexual orientation.

¶ 20. We turn to the remaining provisions in the appealed orders. These require the physician to disclose "other complaints by inmates, clients, patients, or examinees, to the effect that [he] touched them inappropriately or unnecessarily did rectal or prostate exams, and . . . the reasons [he] left previous professional employment." The physician contends that this information, like his sexual orientation, is irrelevant to the subject matter of the litigation and would be inadmissible at trial. He notes that, under Wis. Stat. § 904.04(2), evidence of "other . . . acts is not admissible to prove the character of a person to show that the person acted in conformity therewith." The physician asserts that evidence he has been the subject of complaints or discipline for performing unnecessary rectal examinations, if these facts exist, would not be admissible for the purpose of showing that he was professionally negligent in performing the exams on the plaintiffs in this case. For that reason, the physician argues he should not be compelled to disclose any arguably similar "other acts" during discovery.

¶ 21. We agree that evidence of a person's "other acts" cannot be offered to show his or her character or "propensity" to behave in a certain way, in order to permit a fact finder to infer the person acted in conformity with that propensity on a particular occasion. See Sullivan, 216 Wis. 2d at 783. However, evidence of "other acts" may be admitted under Wis. Stat. § 904.04(2) when offered for a purpose other than showing that the person's actions at issue in the present litigation were "in conformity" with his or her character. See id. As to the permissible purposes for introducing "other acts" evidence, the physician asserts that "the only exceptions to Wis. Stat. § 904.04(2) are directly related to the proof of motive or intent." We disagree.

¶ 22. As we have explained, the physician's motive or intent in performing the rectal exams on these plaintiffs is not relevant to the dispositive question of whether he violated the standard of professional care in performing the exams. We therefore agree with the physician that proof of his motive or intent in conducting the rectal exams would not provide a basis for introducing evidence of his "other acts" at trial. We reject, however, the physician's contention that the permissible purposes for admitting other acts evidence are limited to efforts to establish a person's state of mind. The listing of acceptable purposes for introducing other acts evidence set forth in Wis. Stat. § 904.04(2) is exemplary, not exclusive. See Sullivan, 216 Wis. 2d at 783.

¶ 23. We can envision circumstances in which the plaintiffs might be entitled to admit evidence that the physician was previously sanctioned for conduct similar to that complained of in this action, if such evidence exists. For example, the physician might testify that he customarily performs digital-rectal prostate exams on healthy twenty-five-year-old males because, in his professional opinion, doing so comports with the standard of care. In that event, evidence that the physician was disciplined or discharged for performing unnecessary prostate exams under similar circumstances might be admissible to impeach the credibility of this testimony.

¶ 24. Conversely, the physician might testify that, ordinarily, he would not perform prostate exams on healthy young males during routine physicals but, on these two occasions, he discerned medical reasons for doing so. Evidence, if it exists, that he has been the subject of complaints or sanctions for performing medically unnecessary prostate exams in the past might then be admissible to establish the physician's "habit" of performing medically unnecessary prostate exams. See Wis. Stat. § 904.06. Such evidence would not only tend to impeach the physician's testimony, but it might also be used to show that his present conduct "was in conformity with the habit." See id.; Steinberg v. Arcilla, 194 Wis. 2d 759, 765-70, 535 N.W.2d 444 (Ct. App. 1995) (distinguishing "habit" evidence from "character" evidence and concluding trial court did not err in admitting evidence in a malpractice action of a physician's habit of positioning a patient's arms during surgery).

¶ 25. We emphasize that we do not determine here whether any information the physician provides in response to the appealed orders will necessarily be admissible at trial. The future evidentiary rulings are committed to the sound discretion of the circuit court, to be based on the testimony and other evidence adduced at trial and the specific nature of the proffered evidence and objections to it. Admissibility of any "other acts" evidence at trial may also turn on the circuit court's discretionary weighing of its probative value versus the danger of unfair prejudice or other considerations. See Wis. Stat. § 904.03. For present purposes, however, we cannot conclude that the order to the physician to disclose "other complaints by inmates, clients, patients, or examinees, to the effect that [he] touched them inappropriately or unnecessarily did rectal or prostate exams, and... the reasons [he] left previous professional employment" is not "reasonably calculated to lead to the discovery of admissible evidence" under Wis. Stat. § 804.01(2)(a).

¶ 26. Accordingly, we conclude that the circuit court did not erroneously exercise its discretion in ordering these disclosures as being within the scope of permissible discovery. We note that the circuit court directed the parties to attempt to agree on the wording of a "protective order" designed to ensure that any disclosures in response to the discovery order are not made public. The record before us does not indicate whether such an order has been agreed upon or entered. Our understanding of the circuit court's remarks when it granted the plaintiffs' discovery motions is that the physician will not be required to make the ordered disclosures until the court has entered a protective order to preserve the confidentiality of his responses until further order of the court.

CONCLUSION

¶ 27. For the reasons discussed above, we reverse the appealed orders insofar as they require the physician to disclose his sexual orientation. We affirm the orders in all other respects.

By the Court. — Orders affirmed in part; reversed in part and cause remanded.

       The two plaintiffs filed a joint complaint in a single action. The circuit court ordered the plaintiffs' claims severed from one another. We have consolidated the two actions for purposes of this appeal.

        See State v. Brecht, 143 Wis. 2d 297, 320-21, 421 N.W.2d 96 (1988).

       AH references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted. The physician also petitioned for leave to appeal the circuit court's orders denying his motions for summary judgment. We denied leave to appeal the summary judgment orders. Only the discovery orders are before us.

       Wis JI — Civil 1023; see Nowatske v. Osterloh, 198 Wis. 2d 419, 438-39, 543 N.W.2d 265 (1996).

       See footnote 4, above.

       The parties discuss at some length whether evidence of the physician's sexual orientation would be unfairly prejudicial if admitted at trial. However, only relevant evidence is subject to exclusion on the grounds that "its probative value is substantially outweighed by the danger of unfair prejudice." See Wis. Stat. § 904.03. "Evidence that is not relevant is not admissible," even if it is wholly benign. See Wis. Stat. § 904.02. We have concluded the physician's sexual orientation is not relevant to the subject matter of this action, rendering unnecessary any consideration of its potential for unfair prejudice.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Bank One, NA f/k/a Bank One Milwaukee, NA, Plaintiff-Respondent, v. Christian C. Ofojebe, Defendant, Jacqueline L. Ofojebe, Defendant-Appellant, Sharona Hardy, Defendant.
    Court of Appeals

      No. 2004AP902.

      Submitted on briefs May 4, 2005.

      Decided June 1, 2005.

    2005 WI App 151
    (Also reported in 702 N.W.2d 456.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeffery R. Myer, of Legal Action of Wisconsin, Inc., of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jennifer J. Hoffman, of Bass & Moglowsky, of Milwaukee.
    Before Wedemeyer, PJ., Fine and Kessler, JJ.
   FINE, J.

¶ 1. Jacqueline L. Ofojebe appeals from a summary judgment granting foreclosure on her house to Bank One, NA f/k/a Bank One Milwaukee, NA. Ofojebe contends that the trial court erred because Bank One's complaint did not comply with the pleading requirements of the Wisconsin Consumer Act, Wis. Stat. § 425.109. We agree and reverse with directions to the trial court to dismiss the complaint without prejudice. Ofojebe also claims that the trial court erred because genuine issues of material fact exist as to whether Bank One properly assessed late fees and charged her for insurance. In light of our resolution of the first claim of error, we will not discuss the remaining issues. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).

I.

¶ 2. On September 16, 1995, Jacqueline Ofojebe and her husband, Christian Ofojebe, executed with Bank One: (1) a ten-year Bank One Home Equity Line of Credit Agreement, and (2) a Mortgage. The Credit Agreement had a five-year "draw period" during which the Ofojebes could obtain credit advances up to a $14,548.00 limit. During the first five years, the Ofojebes were also required to make regular monthly installment payments based on one percent of the outstanding balance or the finance charge accrued for that month, whichever was greater. The five-year "draw period" was followed by a five-year "repayment period" during which the Ofojebes were required to make 120 regular equal monthly payments based on an amortization of the balance due.

¶ 3. Jacqueline and Christian Ofojebe divorced in 1997. After the divorce, Jacqueline Ofojebe continued to make installment payments to Bank One. In 2001, Bank One sought foreclosure, alleging that the Ofojebes had defaulted on the Credit Agreement. See Wis. Stat. § 846.101. On January 10, 2003, the trial court dismissed the case, concluding that Bank One had not provided "sufficient, credible and reliable evidence upon which [it] could find that" Jacqueline Ofojebe had outstanding payments.

¶ 4. Jacqueline Ofojebe did not make any payments on the Credit Agreement after the trial court's January 10, 2003 ruling. Bank One commenced the current foreclosure action on June 10, 2003. It alleged that the Ofojebes had defaulted on the Credit Agreement and, as a result, the Ofojebes owed $13,945.56, plus interest. Jacqueline Ofojebe, who had filed her first answer pro se, retained counsel and filed an amended answer and a counterclaim. Bank One then moved for summary judgment.

¶ 5. The trial court granted Bank One partial summary judgment, concluding that Jacqueline Ofojebe was in default because no one disputed that she had not made any payments since the beginning of the first foreclosure action in 2001. It then ordered Bank One to submit an evidentiary affidavit describing how it had calculated its balance, and provided Jacqueline Ofojebe with an opportunity to respond.

¶ 6. After additional briefing from both parties, the trial court found that Jacqueline Ofojebe had not presented any evidence disputing the balance submitted by Bank One, dismissed Jacqueline Ofojebe's counterclaim, and granted Bank One a judgment of foreclosure for $15,606.01.

II.

¶ 7. As we have seen, this case was decided on summary judgment. Thus, our review is de novo, and we apply the same methodology as did the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987).

Under that methodology, the court first examines the pleadings to determine whether claims have been stated and a material issue presented. If the complaint states a claim and the pleadings show the existence of factual issues, the court examines the moving party's affidavits or other evidence for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. If the moving party made a prima facie case, the court examines the opposing party's affidavits for evidentiary facts or other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary.

State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 511, 383 N.W.2d 916, 917 (Ct. App. 1986). When considering the sufficiency of the complaint on summary judgment, we look to the same principles that govern a motion to dismiss for the failure to state a claim: "we will grant the motion only if, taking the pleaded facts as true and construing the allegations liberally, giving the plaintiff the benefit of all inferences, it is quite clear that under no conditions can the plaintiff prevail." Magnum Radio, Inc. v. Brieske, 217 Wis. 2d 130, 136, 577 N.W.2d 377, 379 (Ct. App. 1998) (quoted source and internal quotation marks omitted).

¶ 8. Jacqueline Ofojebe claims that Bank One failed to make a prima facie case for summary judgment because its complaint did not comply with Wis. Stat. § 425.109. Section 425.109 governs pleadings in consumer credit transactions and provides, as material:

Pleadings. (1) A complaint by a creditor to enforce any cause of action arising from a consumer credit transaction shall include all of the following:
(d) The actual or estimated amount of U.S. dollars or of a named foreign currency that the creditor alleges he or she is entitled to recover and the figures necessary for computation of the amount, including any amount received from the sale of any collateral.
(3) A judgment may not be entered upon a complaint which fails to comply with this section.

(Emphasis added.) Jacqueline Ofojebe contends that Bank One's complaint is insufficient because it did not include the figures necessary to compute the amount Bank One alleged was due. Bank One does not address the merits of this allegation. Rather, it contends that Jacqueline Ofojebe waived this contention, pointing out that the defense of failure to state a claim upon which relief can be granted is an affirmative defense that cannot be raised for the first time on appeal. See Oetzman v. Ahrens, 145 Wis. 2d 560, 571, 427 N.W.2d 421, 426 (Ct. App. 1988) (affirmative defense waived if not raised in pleadings); Wis. Stat. Rule 802.06(2)(a)6 (failure to state a claim upon which relief can be granted). We disagree.

¶ 9. Bank One's argument that Jacqueline Ofojebe waived her contention that its complaint did not comply with Wis. Stat. § 425.109 presents us with a question of statutory interpretation. As with our de novo review of summary-judgment determinations, we review de novo a trial court's application of statutes to facts that are not contested. See State v. Wilson, 170 Wis. 2d 720, 722, 490 N.W.2d 48, 50 (Ct. App. 1992), denial of habeas corpus aff'd, Wilson v. McCaughtry, 994 F.2d 1228 (7th Cir. 1993). We have recently recognized:

Application of statutes requires that we "faithfully give effect to the laws enacted by the legislature." In doing so, "[w]e assume that the legislature's intent is expressed in the statutory language." If that language is clear, we apply it as it reads because the words used by the legislature are the best evidence of its intent.

State v. Swiams, 2004 WI App 217, ¶ 5, 277 Wis. 2d 400, 404-405, 690 N.W.2d 452, 454 (citations and quoted sources omitted).

¶ 10. As we have seen, Wis. Stat. § 425.109(3) by its plain language bars entry of judgment if the pleading requirements of § 425.109(1) are not met: "A judgment may not be entered upon a complaint which fails to comply with this section." Bank One thus had to supply in its complaint the figures necessary for the computation of the amount Jacqueline Ofojebe allegedly owed. See Shoeder's Auto Ctr., Inc. v. Teschner, 166 Wis. 2d 198, 200-201, 479 N.W.2d 203, 204 (Ct. App. 1991) (reviewing sufficiency of complaint under § 425.109 despite allegation of waiver); see also Wis. Stat. § 421.102 (liberal construction of Wisconsin Consumer Act). The statute is self-executing. Cf. Ibrahim v. Samore, 118 Wis. 2d 720, 726, 348 N.W.2d 554, 557-558 (1984) (failure to comply with Wis. Stat. § 893.82 "is not waived by a failure to plead it as an affirmative defense"); see Village of Trempealeau v. Mikrut, 2004 WI 79, ¶ 23 n.5, 273 Wis. 2d 76, 93-94 n.5, 681 N.W. 2d 190, 198 n.5 (discussion of Ibrahim and arguably inconsistent cases). We thus turn to the sufficiency of the allegations in Bank One's complaint.

¶ 11. As material, Bank One's complaint alleged: "Plaintiff is the holder of the Note and Mortgage, and there is due to the plaintiff the sum of $13,945.56 as of June 30, 2003, plus accrued interest to the date of entry of judgment." The complaint attached copies of: (1) the Bank One Home Equity Line of Credit Agreement, and (2) the Mortgage. The Credit Agreement provided that the date of the loan was September 16,1995, and the maximum credit limit was $14,548.00. This complaint does not comply with Wis. Stat. § 425.109(l)(d). See Household Fin. Corp. v. Kohl, 173 Wis. 2d 798, 799, 802-803, 496 N.W.2d 708, 709, 710-711 (Ct. App. 1993) (complaint that listed amount owed on specific days and per diem interest statement, but had no record of payments, did not meet requirement that creditor provide figures necessary to calculate amount due). Under § 425.109, judgment may not be entered on a complaint that does not comply with the statute. Accordingly, we reverse and remand to the trial court with directions to dismiss Bank One's complaint without prejudice.

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

       After Bank One and the trial court learned that the Ofojebes were divorced, Christian Ofojebe was dismissed from the case. Bank One then amended its complaint and served Christian Ofojebe. A default judgment of foreclosure was entered against Christian Ofojebe on May 17, 2004. He is not a party to this appeal.


author: BROWN, J.

text:
    Rainbow Springs Golf Company, Inc., Plaintiff-Appellant, v. Town of Mukwonago, Defendant-Respondent.
    Court of Appeals

      No. 2004AP1771.

      Submitted on briefs March 31, 2005.

      Decided June 1, 2005.

    2005 WI App 163
    (Also reported in 702 N.W.2d 40.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Donald J. Mum, Michelle E. Martin, Rebecca J.R. Roeker oí Mum & Martin, S.C. of Waukesha.
    On behalf of the defendant-respondent, the cause was submitted on the brief of H. Stanley Riffle and Julie A. Aquavia oíArenz, Molter, Macy & Riffle, S.C. of Waukesha.

      Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 9-8-05.

   BROWN, J.

¶ 1. Rainbow Springs Golf Company, Inc. appeals an order dismissing its takings claim against the Town of Mukwonago. In May 2003, the Town revoked a conditional use permit and three addenda thereto that permitted various uses of Rainbow Springs' land. Rainbow Springs views the CUP as a vested property right and the deprivation of that right via the Town's revocation as an unconstitutional taking without just compensation. We disagree. A CUP merely represents a species of zoning designations. Because landowners have no property interest in zoning designations applicable to their properties, we hold that a CUP is not property and affirm the circuit court's determination that no taking occurred by virtue of the Town's revocation.

¶ 2. Rainbow Springs owns property in Muk-wonago, Wisconsin. The property contains two golf courses, a clubhouse building operated as a snack bar, and the burnt remains of a hotel/conference center. The Town granted a CUP to Rainbow Springs' predecessors on July 1,1981, allowing them to operate a recreational resort facility, a convention center, and golf courses. On September 2, 1992, they obtained an addendum to that CUP This addendum allowed them to operate a haunted hotel on the property. A second addendum granted to the previous owners on September 3, 1993, allowed live music and service of beer during the operation of the haunted hotel. On December 2, 1998, Rainbow Springs obtained a third addendum to the CUP which allowed it to operate a full-service restaurant in the clubhouse.

¶ 3. A fire occurred on April 16, 2002, destroying a substantial part of the property's buildings. In October, the town planner, dissatisfied with Rainbow Springs' lack of compliance with the Town's instructions for restoration of the property, recommended that the town plan commission hold a public hearing to consider termination of the CUE The following day, acting in her other capacity as senior planner for the Waukesha County Department of Parks and Land Use, she also recommended that the county planning commission revoke the CUE

¶ 4. The town plan commission accepted the planner's recommendation and commenced a joint hearing with the town board on November 6, which both entities subsequently adjourned and continued on April 30, 2003. The Town voted to terminate the CUP on May 14. The county held a hearing on June 19, 2003. It too decided to terminate the CUE

¶ 5. Thereafter, Rainbow Springs sought relief in the circuit court in three separate lawsuits. One suit dealt primarily with the propriety of the Town's termination decision in a petition for certiorari review. Rainbow Springs alleged that the Town acted arbitrarily, unreasonably, and oppressively when it revoked the CUP and acted contrary to law. In a second petition for certiorari review, Rainbow Springs made similar allegations with respect to the county's revocation of the CUE It asserted a takings claim in a third suit, in which it sought compensation for the Town's revocation of the CUE

¶ 6. In a combined decision filed on May 6, 2004, the circuit court rejected both challenges against the Town. Accordingly, it granted both the Town's request to affirm the revocation and the Town's motion to dismiss on the takings issue. In separate proceedings, the court affirmed the county's revocation decision.

¶ 7. Rainbow Springs appealed all three cases. We have affirmed both the Town's and the county's termination decisions in separate per curiam opinions on even date. See Rainbow Springs Golf Company, Inc. v. Town of Mukwonago, No. 2004AP1769, unpublished slip op. (WI App June 1, 2005) and Rainbow Springs Golf Company, Inc. v. Waukesha County, No. 2004AP1770, unpublished slip op. (WI App June 1, 2005). Thus, our decision here addresses only the takings claim.

¶ 8. When the circuit court grants a motion to dismiss for a complaint's failure to state a claim, we review the circuit court's action de novo. State ex rel. Lawton v. Town of Barton, 2005 WI App 16, ¶¶ 2, 9, 278 Wis. 2d 388, 692 N.W.2d 304 (Ct. App. 2004). When assessing whether a complaint states a claim, we accept the truth of all alleged facts and all inferences one might reasonably draw from those facts. Id. We independently review all legal conclusions. Id., ¶ 9. Whether or not a taking has occurred calls for a legal conclusion. Zealy v. City of Waukesha, 201 Wis. 2d 365, 372, 548 N.W.2d 528 (1996).

¶ 9. Article I, section 13 of the Wisconsin Constitution provides, "The property of no person shall be taken for public use without just compensation therefor." Our constitution encompasses more than just physical occupation or possession of property in its conception of "takings" that warrant just compensation. Howell Plaza, Inc. v. State Highway Comm'n, 92 Wis. 2d 74, 81, 284 N.W.2d 887 (1979). It also recognizes constructive takings when "regulation goes too far." Zealy, 201 Wis. 2d at 373. Such takings, also known as regulatory takings, occur when government regulation deprives a property owner of "all or substantially all practical uses of a property." Id. at 373-74.

¶ 10. Rainbow Springs opines that the Town's revocation of its CUP constitutes a regulatory taking. It points out that the CUP permitted various uses of its property. Because the Town revoked the CUR it has lost 100% of the CUP's value. Thus, Rainbow Springs reasons, the Town has deprived Rainbow Springs of "all or substantially all" use of the CUP

¶ 11. The Town's decision to revoke the CUP indeed deprived Rainbow Springs of the full value of the CUR but that fact alone does not suffice to make the revocation a taking. By its terms, article I, section 13 only protects citizens against takings of property. See Wis. Const, art. I, § 13 ("The property of no person shall be taken for public use without just compensation therefor." (Emphasis added.)). Our cases have not held otherwise. In order for Rainbow Springs to assert that it had a property interest in the CUR it must show that it had an entitlement to the CUP as opposed to a mere need, desire, or unilateral expectation of it. Cf. Kraus v. City of Waukesha Police and Fire Comm'n, 2003 WI 51, ¶ 54, 261 Wis. 2d 485, 662 N.W.2d 294 (explaining what property interests the Fourteenth Amendment due process clause protects). State law determines whether such a right exists. Id., ¶ 55.

¶ 12. No state law affirmatively reveals that a CUP is or is not a property interest, but we find our supreme court's holding in Zealy decisive. Zealy held that a landowner's reliance on a particular zoning designation applicable to his or her property does not suffice to give the landowner a vested right to such designation. See Zealy, 201 Wis. 2d at 381. Our courts have acknowledged that CUPs "enjoy acceptance as a valid and successful tool of municipal planning on virtually a universal scale." See State ex rel. Skelly Oil Co. v. Common Council, 58 Wis. 2d 695, 700, 207 N.W.2d 585 (1973) (footnote omitted). Rainbow Springs correctly points out that "no court has ever equated a conditional use permit [to] a zoning designation." A closer inspection of the nature of a CUI] however, leads us to conclude that the former is a subspecies of the latter.

¶ 13. A zoning designation allows a landowner to use his or her property in certain ways. A residential designation, for example, allows landowners to have houses on their properties, and an agricultural designation allows them to grow crops. Our supreme court in Skelly described the nature of conditional uses, the sort of land use a CUP contemplates:

Conditional uses have been used in zoning ordinances as flexibility devices, which are designed to cope with situations where a particular use, although not inherently inconsistent with the use classification of a particular zone, may well create special problems and hazards if allowed to develop and locate as a matter of right in a particular zone.

Id. at 700-01. It went on to state:

... By this device, certain uses (e.g., gasoline service stations, electric substations, hospitals, schools, churches, country clubs, and the like) which may be considered essentially desirable to the community, but which should not be authorized generally in a particular zone because of considerations such as current and anticipated traffic congestion, population density, noise, effect on adjoining land values, or other considerations involving public health, safety, or general welfare, may be permitted upon a proposed site depending upon the facts and circumstances of the particular case.

Id. at 701 (citation omitted). The essential difference then between regular zoning classifications and conditional uses is the fact that the zoning authority puts certain conditions on the latter type of uses. A conditional designation is nonetheless a designation.

¶ 14. Rainbow Springs places value on the CUP because the permit allowed Rainbow Springs to engage in designated uses subject to conditions. Among other uses, it permitted Rainbow Springs to run a convention center and hotel, to operate a haunted hotel and to provide live music and beer when the haunted hotel was open, and to operate a full-service restaurant in the clubhouse building. These uses, like "gasoline service stations, electric substations, hospitals, schools, churches, country clubs, and the like" are the type of uses "which may be considered essentially desirable to the community, but which should not be authorized generally in a particular zone because of considerations such as current and anticipated traffic congestion, population density, noise, effect on adjoining land values, or other considerations involving public health, safety, or general welfare." See id.

¶ 15. Rainbow Springs contends that because the issue of whether a CUP constitutes property involves an issue of first impression, we ought to look to neighboring jurisdictions for guidance. It points out that other jurisdictions have recognized that once a municipality grants a CUR the landowner has a property interest that runs with the land. We need not follow foreign authority, however, when our own supreme court's holding in Zealy is broad enough to encompass conditional uses. We see no reason why conditional zoning designations should be treated differently from designations without conditions attached.

¶ 16. Rainbow Springs appears to suggest that its right to a hearing in which the Town demonstrates noncompliance with the permit — at least where noncompliance is the Town's motivation for termination of a CUP — reveals a distinction between general zoning designations and conditional uses. It asserts:

Holding municipalities to prove non-compliance with a conditional use permit is codified in municipal ordinances, such as the Town Ordinances, which set forth specific termination procedures and standards. This address of termination procedures renders a previously-granted conditional use permit unique, as ordinances [do] not set forth termination procedures and standards for other tools of zoning such as zoning designations and variances.

This language follows Rainbow Springs' suggestion that such a procedure is the minimum required by due process where termination of a property right is sought. Thus, it seems to suggest that town ordinances recognize a due process right and that such recognition reveals a property interest is at stake.

¶ 17. We disagree. Although due process might require such a hearing if a CUP were a property interest, due process considerations and rights to be heard are not limited to situations involving revocation of a property interest. In Oliveira v. City of Milwaukee, 2001 WI 27, ¶¶ 3, 24, 27, 31, 242 Wis. 2d 1, 624 N.W.2d 117, the supreme court addressed whether members of the public had been adequately apprised of changes to a zoning amendment:

The rationale for requiring a Wis. Stat. § 62.23(7)(d)2. notice and hearing when there is a substantial change in the substance of the zoning amendment ensures that the public has the opportunity to express views regarding the zoning amendments. The statutory notice and hearing requirements implicate due process concerns because property rights are affected by changes in the zoning laws. "Notice and hearing provisions are invariably intertwined with due process considerations. The legislature, in enacting sec. 62.23(7)(d), has attempted to protect this right to due process by requiring an adequate notice and hearing before a change in municipal zoning could affect the character of a neighborhood."

ld.,\ 31 (emphases added; footnote omitted). Rainbow Springs' right to be heard prior to revocation of the CUP stemmed from the fact that revocation constituted a change in the conditional zoning designation which affected property Rainbow Springs owned (its land), not because the CUP itself was property.

¶ 18. We affirm. Rainbow Springs' complaint does not state a claim for relief because it does not demonstrate that revoking the CUP deprived Rainbow Springs of a property interest. A CUP is merely a type of zoning designation, not a piece of property.

By the Court. — Order affirmed.

       For ease of reference, we refer to the permit and the three accompanying addenda collectively as the CUE


author: ANDERSON, EJ. BROWN, J.

text:
    Gary Richards, Plaintiff-Respondent, v. First Union Securities, Inc., Defendant-Appellant.
    Court of Appeals

      No. 2004AP1877.

      Submitted on briefs April 14, 2005.

      Decided June 1, 2005.

    2005 WI App 164
    (Also reported in 702 N.W.2d 45.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael H. Schoolman and Robert J. Pluta of Quarles & Brady LLP, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James Bolt, New Berlin.
    Before Anderson, EJ., Brown and Snyder, JJ.

       Petition to review granted 11-15-05.

   ANDERSON, EJ.

¶ 1. First Union Securities, Inc. appeals from a circuit court order denying its motion to reopen a default judgment entered in favor of Gary Richards. First Union contends that the circuit court's determination that it waived its jurisdictional defense of insufficient service of process was in error. First Union then argues that the service of process upon it was improper because Richards did not serve one of its officers, directors or managing agents nor did he serve the person in charge of the office of one of its officers, directors or managing agents. According to First Union, because service was defective, the circuit court lacked personal jurisdiction over it in the first instance and the default judgment was void. We agree with First Union and reverse the order of the circuit court.

I. Facts

¶ 2. On July 23, 2002, Richards filed an action against First Union in part to recover investment losses as the result of alleged violations of the anti-fraud sections of the Wisconsin Uniform Securities Law. The affidavit of service indicates that on July 24 the process server served First Union at its office in Brookfield. According to a subsequent affidavit of the process server, "[w]hen serving legal process on a corporate defendant it is always my practice to state the purpose of my appearance and to ask the office personnel to identify and to direct me to the individual authorized to accept service for the company . . . and to confirm that individual's authority to accept service." In this case, Kim Wisniewski, a First Union employee at the Brook-field office, accepted service.

¶ 3. In September, First Union contacted Richards to inform him that there was a written agreement which required him to arbitrate his disputes. Richards consented to arbitration and First Union agreed to pay the arbitration filing fee. In addition, Richards agreed to an extension of time for First Union to answer or otherwise respond to the complaint. First Union failed to tender the arbitration filing fee or to file an answer. On October 29, Richards sent a letter to First Union stating that the court had issued a notice of dismissal and that if the arbitration fee was not paid by November 5, the offer to arbitrate would be withdrawn and the lawsuit would proceed. On November 12, Richards filed a motion for default judgment for failure to answer. The court entered default judgment against First Union.

¶ 4. One year later, on November 13, 2003, Richards sent a letter demanding payment of the judgment. When First Union failed to pay the amount owed, Richards began garnishment proceedings. First Union filed an answer to the garnishment on February 9, 2004, and a motion to reopen the default judgment on February 25 based in part on its claim of insufficient service of process.

¶ 5. After submitting its motion, First Union filed the affidavits of Wisniewski, the employee who accepted service, and Ronald McGrath, the branch manager of the Brookfield office. In her affidavit, Wisniewski stated that she was in charge of the back office operations in the Brookfield office. She explained that this meant she was "responsible for making sure that the brokers in the Brookfield office properly fill out the forms to complete transactions for their customers in compliance with the rules and policies of the firm." She further averred that she was not an officer, director or managing agent of First Union; she was not in charge of the Brookfield office and had never told anyone that she was in charge; and she was not authorized to accept complaints filed against the brokers of the firm. McGrath stated that while he was the branch manager of the Brookfield office, he was not an officer, director or managing agent of First Union. He stated that there are no officers, directors or managing agents of First Union in Wisconsin and that there are no employees otherwise authorized to accept service of process in the state. He explained that First Union is a Delaware corporation having its principal place of business in Virginia and its registered agent in the state is CSC-Layers Incorporating Service Company in Madison. He further averred that he was the person in charge of the Brookfield office.

¶ 6. The circuit court heard arguments on First Union's motion in April 2004. In a written decision, the circuit court denied the motion. The court wrote "the record clearly reflects that defects in personal service were waived."

II. Standard of Review

¶ 7. Granting, and granting relief from, a default judgment rests within the circuit court's discretion. Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, ¶ 63, 253 Wis. 2d 238, 646 N.W.2d 19; Holman v. Family Health Plan, 227 Wis. 2d 478, 483, 596 N.W.2d 358 (1999). "A circuit court properly exercises its discretion when it considers the relevant facts, applies the correct law, and articulates a reasonable basis for its decision." National Auto Truckstops, Inc. v. DOT, 2003 WI 95, ¶ 12, 263 Wis. 2d 649, 665 N.W.2d 198. If the circuit court decision involves a question of law, "we review the question of law de novo and reverse if the exercise of discretion is based on an error of law." Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 225, 594 N.W.2d 370 (1999) (citations omitted).

¶ 8. "The service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction.. . ." Danielson v. Brody Seating Co., 71 Wis. 2d 424, 429, 238 N.W.2d 531 (1976). "Whether service of a summons is sufficient to obtain personal jurisdiction over a defendant involves the interpretation and application of a statute to undisputed facts and is reviewed as a question of law." Useni v. Boudron, 2003 WI App 98, ¶ 8, 264 Wis. 2d 783, 662 N.W.2d 672. The party seeking to vacate judgment has the burden of proving lack of effective service. Haselow v. Gauthier, 212 Wis. 2d 580, 587, 569 N.W.2d 97 (Ct. App. 1997).

III. Discussion

¶ 9. First Union maintains that the circuit court's refusal to vacate the default judgment and dismiss Richards' action was in error. As a preliminary matter, First Union challenges the circuit court's determination that it waived its defense of lack of personal jurisdiction. First Union then argues that based on the facts of record, Richards' service of process upon it was not in compliance with the statutory rules governing service on a foreign corporation. Thus, according to First Union, the circuit court lacked personal jurisdiction over it and the default judgment was void.

A. Waiver

¶ 10. The circuit court concluded that First Union waived the right to object to a lack of personal jurisdiction for want of proper service of process. It is difficult to discern from the record why the circuit court came to this conclusion and Richards does not argue this point on appeal.

¶ 11. As explained, proper service of a summons and complaint is required to confer personal jurisdiction on the court over the person served. Useni, 264 Wis. 2d 783, ¶ 12. Personal jurisdiction and a party's waiver of jurisdictional defenses are controlled by statute. Sacotte v. Ideal-Werk Krug & Priester Machinen-Fabrik, 119 Wis. 2d 14, 16, 349 N.W.2d 701 (Ct. App. 1984), aff'd, 121 Wis. 2d 401, 359 N.W.2d 393 (1984); see also Wis. Stat. §§801.11 and 802.06(8) (2003-04). Section 802.06(8) provides that objections to personal jurisdiction are waived only if omitted from § 802.06 motions or the responsive pleadings. Sec. 802.06(8); see also Honeycrest Farms, Inc. v. A.O. Smith Corp., 169 Wis. 2d 596, 601-02, 486 N.W.2d 539 (Ct. App. 1992). Here, First Union did not file any motions or answers prior to the entry of the default judgment. Thus, in its motion to vacate the default judgment, its first action before the court in this case, First Union properly raised its jurisdictional defense. See Useni, 264 Wis. 2d 783, ¶ 12 (holding that a defendant who raised the issue of lack of personal jurisdiction for insufficient service of process in a motion submitted after default judgment was entered did not waive the right to object to lack of personal jurisdiction). Accordingly, we refuse to base our decision on any purported waiver of objections to personal jurisdiction.

B. Sufficiency of Service of Process

¶ 12. Wisconsin Stat. §§ 180.0504(1) and 801.11(5) (a) specify, respectively, that a plaintiff may invoke personal jurisdiction over a foreign corporation by serving the corporation's registered agent or

[b]y personally serving the summons upon an officer, director or managing agent of the corporation or limited liability company either within or without this state. In lieu of delivering the copy of the summons to the officer specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.

Richards did not exercise the option of serving First Union's registered agent. The dispute in this case is whether Richards' presentation of the summons and complaint to Wisniewski complied with either the direct personal delivery service option or the alternative service option.

1. Personal Delivery Service Option

¶ 13. First Union argued before the circuit court, as it does here, that Wisniewski was not an officer, director or managing agent of First Union and therefore Richards' presentation of the summons and complaint to her failed the direct personal delivery service option under Wis. Stat. § 801.11(5). Richards does not appear to challenge this assertion on appeal.

¶ 14. The record does not show that Wisniewski was an officer or director of First Union. In Carroll v. Wisconsin Power & Light Co., 273 Wis. 490, 494, 79 N.W.2d 1 (1956), our supreme court defined "managing agent" as "a person possessing and exercising the right of general control, authority, judgment, and discretion over the business or affairs of the corporation, either on an over-all or part basis, i.e., everywhere or in a particular branch or district." The evidence is clear that Wisniewski possessed no such authority in her position in the back office of the First Union Brookfield office. Her authority was not general, but was limited to ensuring the proper completion of forms concerning customer transactions. Because Wisniewski was not an officer, director, or managing agent, she was not one within the class of persons upon whom corporate service could be made.

2. Alternative Service Option

¶ 15. Having determined that Richards did not use the direct personal delivery service option, we turn to the question of whether Richards' presentation of the summons and complaint to Wisniewski satisfied the alternative service option. Whether a party has complied with the alternative service option under Wis. Stat. § 801.11(5)(a) presents two questions: (1) Objectively, was the location where the summons and corn-plaint were presented "the office of [an] officer, director or managing agent"? and (2) Subjectively, was it reasonable for the process server to conclude that the person presented with the summons and complaint was "the person who is apparently in charge of the office"? Bar Code Res., a Div. of Allen Mgmt., Inc. v. Ameritech Info. Sys., Inc., 229 Wis. 2d 287, 292, 599 N.W.2d 872 (Ct. App. 1999). See also Hagen v. City of Milwaukee Employes' Ret. Sys. Annuity & Pension Bd., 2003 WI 56, ¶ 24, 262 Wis. 2d 113, 663 N.W.2d 268. Proper analysis must begin with the first question because if, in fact, the process server simply fails to locate the correct office, service cannot be accomplished and the second question need not be considered. See Bar Code Res., 229 Wis. 2d at 292; Hagen, 262 Wis. 2d 113, ¶ 24 ("Service on a person 'apparently in charge' of the wrong office is insufficient, even if it is based upon a process server's reasonable belief in the propriety of service.").

¶ 16. First Union submits that the first prong of the alternative service option was not satisfied because McGrath, the "branch manager" for the First Union Brookfield office, was not an officer, director or managing agent and Wisniewski was not "apparently in charge" of the Brookfield office. Richards responds that McGrath was both an officer and a managing agent at First Union. However, because Richards' argument concerning McGrath's status as an officer of the corporation was based entirely on a stricken portion of the record and we find no other evidence to support this contention, we will address in more detail only the question of whether McGrath was a managing agent.

¶ 17. In Carroll, the case in which our supreme court set forth the definition of "managing agent," the court addressed the issue of whether a "generating-station manager" of one of several generator plants owned by a corporation was a managing agent within the meaning of what is now Wis. Stat. § 801.11(5)(a). Carroll, 273 Wis. at 491-92. The station manager directed operations at the plant, had charge of its machinery and maintenance, and had authority over all plant employees. Id. at 493. He reported to an individual charged with managing all of the corporation's generating plants, and did not have authority to hire employees or purchase supplies. Id. Despite the station manager's job title and managerial duties, the Carroll court concluded that the station manager was not a "managing agent":

The evidence is clear that [the station manager] possessed no such authority with reference to his employment by the corporation .... His authority was not general, but was limited to the management of the physical operation of the plant and its maintenance, and some physical service at smaller plants of the company.

Id. at 494.

¶ 18. Applying Carroll to the present factual scenario, we conclude that McGrath was not a managing agent of First Union. Our conclusion rests on McGrath's affidavit, as there is no other evidence in the record regarding his position that is of assistance. McGrath's affidavit is silent with regard to the exact nature of the work he performs, the nature of his authority, the scope of his duties, and his precise position within First Union's corporate structure. From the affidavit, we know only that he was the "branch manager" in charge of the First Union Brookfield office. However, as Carroll teaches, the mere title of an employee's position within a corporation does not make him or her a managing agent; rather, whether an employee is a managing agent is controlled by the powers he or she possesses and the work he or she performs. See id. Thus, McGrath's designation as a "branch manager" alone does not sufficiently demonstrate that he was cloaked with the general responsibilities envisioned by the Wisconsin Statutes such that he is a "managing agent" and proper person to receive service.

¶ 19. Richards makes a tempting argument that as branch manager McGrath assumed the responsibility of ensuring compliance with state and federal securities laws and, therefore, he possessed the general authority required to satisfy the definition of "managing agent." However, the scant evidence in the record prevents us from drawing such a conclusion.

¶ 20. It may be true that both state and federal securities laws require securities broker dealers to have on file written supervisory procedures designed to prevent and detect violations and that such procedures must include the names of individuals delegated the supervisory responsibilities within the corporation. See Wis. Admin. Code §§ DFI-Sec 4.04(7)(c) and 4.05(2) (Nov. 2003); 17 C.F.R. § 240.17a-3(a)(22), 3(h)(2) (2005). However, we have no way of knowing that McGrath was the individual at the Brookfield branch office entrusted with carrying out these responsibilities. McGrath's title of "branch manager," without more information, has little to no meaning for our purposes.

¶ 21. Furthermore, the regulations Richards cites pertain to the fiduciary duties each broker dealer owes its customers. See generally United States Sec. and Exch. Comm'n v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186 (1963) (holding that "[a] fundamental purpose [of the Securities Exchange Act of 1934] was to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry"); State v. Woodington, 31 Wis. 2d 151, 182, 142 N.W.2d 810 (1966) (concluding that the public purpose of securities law is to protect the investing public from fraudulent practices). We question whether the carrying out of such fiduciary obligations can be equated with the general supervisory authority over the business affairs of a corporation required for a "managing agent" under Carroll.

¶ 22. There is simply not sufficient evidence to convince us that McGrath had general supervisory authority with regard to the business affairs of First Union. Therefore, service of process upon Wisniewski, regardless of whether she was in charge of the Brook-field office at the time of service, did not constitute proper service of the office of an officer, director or managing agent. See Bar Code Res., 229 Wis. 2d at 292; Hagen, 262 Wis. 2d 113, ¶ 24.

¶ 23. Wisconsin compels strict compliance with the rules of statutory service, even though the consequences may appear to be harsh. Useni, 264 Wis. 2d 783, ¶ 13. Our supreme court has held that service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction, despite actual knowledge by the defendant. Id. A judgment rendered where the court lacks personal jurisdiction over a party for failure to comply with the rules of service of process is considered void and may be set aside at any time. Haselow, 212 Wis. 2d at 586-87; West v. West, 82 Wis. 2d 158, 166, 262 N.W.2d 87 (1978) ("A void judgment may be expunged by a court at any time."). Therefore, because Richards' service of process failed to comport with the statutory requirements for service on a foreign corporation, the circuit court lacked personal jurisdiction over First Union and the default judgment is void.

By the Court. — Order reversed.

BROWN, J.

¶ 24. (dissenting). The key issue in this case is whether First Union's branch office was a proper place to serve process on First Union. Everyone agrees that process is effectively served when left with someone apparently in charge of a managing agent's office. The only question here then is whether McGrath, the branch manager, was such an agent. The majority voids Richards' default judgment against First Union because "the scant evidence in the record" makes it impossible to ascertain McGrath's precise job description and authority. See majority op., ¶¶ 18-22. The court errs manifestly in two respects. First, Richards has no duty to prove McGrath is a managing agent. Rather, First Union must prove McGrath is not such a person. Second, securities regulations confer certain duties on branch managers as a matter of law. These legally derived powers and responsibilities bring McGrath within the definition of "managing agent," irrespective of whether the factual record hears out his exercise of those functions. Moreover, what sparse evidence the record does contain tends to support McGrath's authority as a managing agent. For these reasons, I respectfully dissent.

¶ 25. The dearth of factual information in the record makes it particularly important to place the burden of proof on the proper party. We review independently which party bears the burden of proof and whether that party has met its burden; these issues present legal questions. Long v. Ardestani, 2001 WI App 46, ¶ 36, 241 Wis. 2d 498, 624 N.W.2d 405; Wolfe v. Wolfe, 2000 WI App 93, ¶ 14, 234 Wis. 2d 449, 610 N.W.2d 222. Generally, the party invoking the judicial process in favor of its position bears this burden, Wolfe, 234 Wis. 2d 449, ¶ 15, and that rule certainly applies to this case. According to Haselow v. Gauthier, 212 Wis. 2d 580, 585, 587, 569 N.W.2d 97 (Ct. App. 1997), the party seeking to vacate a default judgment has the burden of proving lack of effective service. See also Emery v. Emery, 124 Wis. 2d 613, 622-23, 369 N.W.2d 728 (1985).

¶ 26. In order for First Union to properly meet its obligation to prove ineffective service, it must offer more than McGrath's conclusory declaration that he does not qualify as a managing agent. His bald assertion does not substitute for evidence, as the majority suggests, just because the record is otherwise lacking. To the contrary, First Union must present facts that sufficiently demonstrate why his position as branch manager does not make him a managing agent. Without this showing, First Union cannot prove that the branch office where McGrath works was the wrong place to serve process.

¶ 27. The "scant evidence in the record" convincingly demonstrates First Union's failure to meet its burden. For that reason alone, Richards should prevail. At the very least, if the majority has concerns about the lack of factual information, it should remand the case back to the circuit court to make the proper findings. Instead, it improperly shifts the burden to Richards.

¶ 28. Despite the fact that Richards has no duty to establish McGrath's status as a managing agent for First Union, securities regulations and facts of record support the inference that a branch manager is a managing agent. Securities and Exchange Commission regulations designate certain individuals, including branch managers, as "principals." For purposes of SEC, General Rules and Regulations, Securities Exchange Act of 1934, 17 C.F.R. § 240.17a-3(h)(2), "principal means any individual registered with a national registered securities association as a principal or branch manager of a member, broker or dealer or any other person who has been delegated supervisory responsibility over associated persons by the member, broker or dealer."

¶ 29. Securities and Exchange Commission, General Rules and Regulations, Securities Exchange Act of 1934, 17 C.F.R. § 240.17a-3 mentions several functions performed by principals that suggest a high degree of "general control, authority, judgment, and discretion . . . either on an overall or part basis." See Carroll v. Wisconsin Power & Light Co., 273 Wis. 490, 494, 79 N.W.2d 1 (1956) (defining "managing agent"). Federal law requires all brokers and dealers in securities to keep certain documents. Sec. 240.17a-3(a). These documents include:

[a] record listing each principal of a member, broker or dealer responsible for establishing policies and procedures that are reasonably designed to ensure compliance with any applicable federal requirements or rules of a self-regulatory organization of which the member, broker or dealer is a member that require acceptance or approval of a record by a principal. documenting that the member, broker or dealer has complied with, or adopted policies and procedures reasonably designed to establish compliance with, applicable federal requirements and rules of a self-regulatory organization of which the member, broker or dealer is a member which require that advertisements, sales literature, or any other communications with the public by a member, broker or dealer or its associated persons be approved by a principal.

Sec. 240.17a-3(a)(22) (emphases added). They also include records

Sec. 240.17a-3(a)(20) (emphases added). Federal regulations further require

[a]n account record including the customer's or owner's name, tax identification number, address, telephone number, date of birth, employment status (including occupation and whether the customer is an associated person of a member, broker or dealer), annual income, net worth (excluding value of primary residence), and the account's investment objectives .... The account record shall indicate whether it has been signed by the associated person responsible for the account, if any, and approved or accepted by a principal of the member, broker or dealer.

Sec. 240.17a-3(a)(17)(i)(A) (emphases added).

¶ 30. Wisconsin securities regulations also suggest that branch managers have a broad degree of general authority over their particular branches. Wisconsin Admin. Code § DFI-Sec 4.04(7) (c) requires every branch office, upon opening, to file certain information, including the name of the supervisor at that office. Like the federal regulations, Wis. Admin. Code § DFI-Sec. 4.05(2) also requires a complete set of written supervisory procedures to be kept at every branch office, along with a system for implementing them. These procedures and implementation system are designed to prevent and detect any violations of Wisconsin securities statutes. See § DFI-Sec 4.05(2); Wis. Stat. ch. 551 (entitled "WISCONSIN UNIFORM SECURITIES LAW"). The procedures further require designation of supervisory employees "reasonable in relation to the number of [the broker-dealer's] licensed agents." § DFI-Sec. 4.05(2). The fact that compliance procedures must designate supervisory employees suggests that these individuals bear the responsibility for ensuring that the broker-dealer follows the procedures.

¶ 31. These various regulations plainly reveal that principals, including branch managers, have the authority, and often the duty, to approve accounts, to implement measures that comply with applicable securities regulations, and to approve advertisements, sales literature, and other communications to the public. These functions make a branch manager of a securities broker or dealer far different from the plant manager in Carroll. That individual's functions were limited to physical operation and maintenance of the plant, essentially making sure that machinery ran properly. Carroll, 273 Wis. at 494. A branch manager's duties, by contrast, reveal a broad degree of supervisory and policy making authority as well as the power to act for the company in a representative capacity vis-á-vis the public. Cf. also Black's Law Dictionary 1230-31 (8th ed. 2004) (defining a principal as "[o]ne who authorizes another to act... as an agent" or "who has primary responsibility on an obligation.").

¶ 32. The majority admits that the responsibilities required by applicable securities regulations impose fiduciary duties on principals. Yet, it questions "whether the carrying out of such fiduciary obligations can be equated with the general supervisory authority over the business affairs of a corporation required for a 'managing agent' under Carroll." Majority op., ¶ 21. I am confident that the very nature of the duties just described speaks for itself. Moreover, I do not see how a branch manager could have such fiduciary duties without holding a general supervisory and policymaking role. Cf. Modern Materials, Inc. v. Advanced Tooling Specialists, Inc., 206 Wis. 2d 435, 557 N.W.2d 835 (Ct. App. 1996) (describing when an employee owes a fiduciary duty to the employing company). In Modern Materials, we recognized that "whether an employee is vested with policy-making authority or has the ability to make decisions which bind the company" is "the controlling question" on the determination of fiduciary capacity. Id. at 443-44 (emphasis added).

¶ 33. Despite the scant information in the record, it does contain evidence that McGrath, acting in his capacity as branch manager, exercised some of the authority applicable securities regulations delegate to principals. The record contains, for example, an agreement between Richards and First Union's predecessor, Blunt Ellis & Loewi. The form contains a signature line marked "branch approval" with a box reserved for the branch office manager's signature. The fact that the branch manager signed the form is consistent with federal regulations that confer upon branch managers and other principals the authority to approve accounts.

¶ 34. Moreover, as the above discussion indicates, someone at each branch office has the responsibility to ensure compliance with securities regulations. Consistent with that mandate, McGrath admits in his affidavit, "I am the person in charge of the Brookfield Branch office ... I was also the person in charge of the Brook-field Branch office during the entire year of 2002." It simply is not reasonable to assume without solid evidence to the contrary that someone other than "the person in charge" of the branch office has the ultimate responsibility of ensuring the branch's compliance with the law.

¶ 35. First Union should not be allowed to defeat the default judgment in Richards' favor. Securities regulations expressly recognize branch managers as principals endowed with certain authority. The functions enumerated in these laws are consistent with the broad general authority of a managing agent. First Union essentially argues that although McGrath has the title "branch manager," he does not have any of the legally imposed fiduciary duties that securities regulations assign to a "branch manager." Perhaps First Union uses different terminology to describe various positions within its structure than that used in the securities regulations and has assigned a role equivalent to "branch manager" to someone other than McGrath. However, I do not see how this court can accept such a position without some factual basis. If we are not going to send the case back to the circuit court for appropriate fact finding in this regard, we should affirm. Because the majority instead misallocates the burden of proof to Richards, I must dissent.

       First Union Securities, Inc. is now known as "Wachovia Securities, Inc." We, like the parties and the trial court, will refer to the defendant as First Union.

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

       In Bar Code Resources, a Division of Allen Management, Inc. v. Ameritech Information Systems, Inc., 229 Wis. 2d 287, 290-91, 599 N.W.2d 872 (Ct. App. 1999), we referred to the two service options as the "direct personal delivery service option" and the "alternative service option." For continuity and ease of reference, we will use these phrases here.

       All references to the Wisconsin Administrative Code are to the November 2003 version unless otherwise noted.

       Unless otherwise noted, all references to the Code of Federal Regulations are to the 2005 version.


author: CANE, C. J.

text:
    Amy N. Varda, Plaintiff-Respondent-Cross-Appellant, OSF Healthplans, Involuntary-Plaintiff, v. Acuity, A Mutual Insurance Company, Defendant-Third-Party Plaintiff-Cross-Respondent, Brent Roberts, Jennifer L. Stoeger and ABC Insurance Company, Defendants-Cross-Respondents, Ellington Mutual Insurance Company, Defendant-Appellant, v. Luane Quella and Christopher Quella, Third-Party Defendants-Cross-Respondents.
    Court of Appeals

      No. 2004AP2853.

      Submitted on briefs May 2, 2005.

      Decided June 1, 2005.

    2005 WI App 167
    (Also reported in 702 N.W.2d 65.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Arnold P Anderson of Mohr & Anderson, LLC, of Madison.
    On behalf of the defendant-third-party plaintiff-cross-respondent, Acuity, a Mutual Insurance Company, the cause was submitted on the brief of Vincent R. Biskupic of Hinshaw & Culbertson, LLP of Appleton.

      On behalf of the plaintiff-respondent-cross-appellant, Amy N. Varda, the cause was submitted on the combined brief of James P. Pitz of Sigman, Janssen, Stack, Sewall & Pitz of Appleton.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 8-25-05.

   CANE, C. J.

¶ 1. Ellington Mutual Insurance Company appeals a nonfinal order denying its motion for summary judgment in this personal injury case. Ellington argues that its homeowner's policy with Henry Stezenski does not provide coverage for an accident that occurred while Christopher Quella was mowing the lawn of Stezenski's rental property because Quella was not performing "domestic duties" for its insured at the time.

¶ 2. Amy Varda, who was injured in the accident, cross-appeals the judgment and order granting Acuity's motion for summary judgment. Varda argues that the trial court erred when it concluded the Quellas' policy with Acuity unambiguously denied liability for injuries arising out of the use of a motorized land conveyance. Varda contends that the phrase "motorized land conveyances" is ambiguous and should be construed against Acuity and in favor of coverage. If we conclude the exclusion is unambiguous, Varda argues alternatively that (1) an exception to the exclusion for vehicles designed for off-road recreational use applies to riding lawn mowers and (2) that the mower's cutting deck was an independent concurrent cause of the accident and her injuries.

¶ 3. We conclude that Quella was an insured for the purposes of Ellington's policy with Stezenski and that the Acuity exclusion for motorized land conveyances unambiguously applies to riding mowers. We agree with the trial court that the recreational use exception to the exclusion does not apply and that the cutting deck was not an independent concurrent cause of Varda's injuries. The judgment and orders are therefore affirmed.

FACTS

¶ 4. The material facts in this case are simple and undisputed. Stezenski owned two houses in Appleton. He lived in one and rented the other, on South Lawe Street, to Brent Roberts and Jennifer Stoeger. On August 31,2002, Christopher Quella, who was fifteen at the time, was cutting the lawn of the Lawe Street house for Roberts and Stoeger. Quella was using a riding mower. Varda was also outside at the time, walking through a neighbor's yard adjacent to the yard being mowed. A rock thrown up by the mower hit Varda in the eye, injuring her.

¶ 5. Varda sued Quella; his mother, Luane; the Quellas' insurer, Acuity; Stezenski; Stezenski's insurer, Ellington Mutual; and Roberts and Stroeger. In response to Varda's suit, Ellington and Acuity filed motions for summary judgment on coverage issues. The trial court granted Acuity's motion and denied Ellington's. Ellington now appeals the nonfinal order and Varda cross-appeals the summary judgment for Acuity.

DISCUSSION

Standards of Review

¶ 6. We review summary judgments de novo, using the same standards and methodology as the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate if the material facts are undisputed or if no reasonable alternative inference can be drawn from undisputed facts, and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2).

¶ 7. The interpretation of an insurance contract is also a question of law this court reviews de novo, applying the same rules of construction we apply to contracts generally. Wisconsin Label Corp. v. Northbrook Prop. & Cas. Ins. Co., 2000 WI 26, ¶¶ 23-24, 233 Wis. 2d 314, 607 N.W.2d 276. ’When we construe an insurance policy, we look first to the language of the agreement. Stubbe v. Guidant Mut. Ins. Co., 2002 WI App 203, ¶ 8, 257 Wis. 2d 401, 651 N.W.2d 318. If that language is clear on its face, we simply apply the policy terms. See Wisconsin Label Corp., 233 Wis. 2d 314, ¶ 24.

¶ 8. If the policy language is reasonably susceptible of more than one construction, it is ambiguous. See Sprangers v. Greatway Ins. Co., 182 Wis. 2d 521, 536-37, 514 N.W.2d 1 (1994). We resolve ambiguities in an insurance policy against the insurer and in favor of the insured. See Garriguenc v. Love, 67 Wis. 2d 130, 135, 226 N.W.2d 414 (1975). Whether ambiguities exist is, however, a question of law. See Western Cas. & Surety Co. v. Budrus, 112 Wis. 2d 348, 351, 332 N.W.2d 837 (Ct. App. 1983).

¶ 9. To determine whether coverage exists under a particular policy, we examine the facts of the insured's claim to ascertain whether the insuring agreement makes an initial grant of coverage. American Fam. Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶ 23, 268 Wis. 2d 16, 673 N.W.2d 65. If an initial grant is triggered, we then look to see if any exclusions apply; exclusions are narrowly or strictly construed against the insurer and any ambiguities are resolved in favor of coverage. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990).

Domestic Duties Related to the Insured Premises

¶ 10. Ellington argues that the trial court erred when it concluded that Quella was an insured under the terms of its policy with Stezenski because he was performing "domestic duties" that related to "the insured premises." It claims that maintaining the Lawe Street property's lawn was Roberts's job as tenant and that the phrase "domestic duties" refers only to actions undertaken for the care, comfort, and convenience of the Stezenski family. Any other result would, Ellington contends, produce the absurd result of providing more coverage for tenants and their agents than for the policyholder. Based on the policy's plain language, we disagree.

¶ 11. We first note that Stezenski purchased insurance from Ellington covering the rental property. The liability portion of that policy promises to pay "all sums for which an insured is liable by law because of bodily injury or property damage caused by an occurrence." There is no question in this case that Varda suffered bodily injury or that her injury was caused by an occurrence under the terms of the policy. The only question, as Ellington recognizes, is whether Quella qualifies as an insured.

¶ 12. We agree with the trial court that he does. Under 8f, Section II, "Definitions," of the Ellington policy, the definition of an insured includes "persons in the course of performing domestic duties that relate to the insured premises." The policy defines insured premises as both the family dwelling shown on the declarations page and all other premises shown on that page. The declarations page of Stezenski's policy lists two addresses in Appleton as insured premises: one is the family's residential address; the other is the Lawe Street rental property. Finally, the policy states that liability and medical coverage is extended to "cover the additional family dwelling(s) described in the declarations." Despite Ellington's arguments, therefore, the policy's plain language requires no connection between domestic duties and the Stezenski family or its convenience. The policy simply requires that the duty be related to the insured premises and, in this case, the insured premises include the Lawe Street house where the accident occurred.

¶ 13. Ellington's claim that a reasonable person in Stezenski's position would understand domestic duties as being owed to people, not to real estate, is beside the point. Ellington never denies that mowing lawns is a domestic duty. Thus, even if Ellington is correct and people ordinarily associate that duty with individuals rather than premises, the unambiguous language of the policy expresses something different and must govern. See, e.g., Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 736, 351 N.W.2d 156 (1984).

Riding Lawn Mowers and Motorized Land Conveyances

¶ 14. On cross-appeal, Varda argues the trial court erred when it determined that the Quellas' Acuity policy provided no coverage for her injuries because Acuity exclusion for motor vehicles and motorized land conveyances unambiguously applied to the riding mower in this case. She claims the phrase "motorized land conveyance" is ambiguous and should therefore be construed as a reasonable person would expect it to be construed. Varda concludes that, in the absence of any definition within the policy, an ordinary person in her position would not expect to have to buy separate lawn mower insurance to protect her family. She argues alternatively that a riding mower is not a conveyance and that the exclusion therefore does not apply. We are not persuaded.

¶ 15. In determining whether that exclusion applies to a riding lawn mower, we begin, as did the trial court, with the common or ordinary meaning of the policy's words. A "motor vehicle" is defined as "an automotive vehicle not operated on rails; esp : one with rubber tires for use on highways." Webster's Third New Int'l Dictionary 1476 (unabr. 1991). To "motorize" means to equip with a "motor," which is defined in turn as "a source of mechanical power ... [a] gasoline engine ... [a] rotating machine that transforms electrical energy into mechanical energy ...." Id. at 1475-76. A "conveyance" is a "means of carrying or transporting something." Id. at 499.

¶ 16. A riding lawn mower is not, in the ordinary meaning of the words, an automotive vehicle nor is it designed for use on highways or public roads. Thus, the question here is whether a riding mower is a motorized land conveyance. When we compare the definitions of motor vehicle and motorized land conveyances, it is clear the two terms are related but not identical. Motor vehicles are a subset of a larger class of things with motors that perform the functions of carrying and transporting on land. Because the riding lawn mower in this case had a motor, moved on land, and carried or transported its rider, it fits into the larger category of motorized land conveyances.

¶ 17. However, Varda contends that a riding mower does not fit the definition in an important way. While a riding mower can carry a person, she points out, its primary purpose is not for transportation but for servicing a yard. She cites our opinion in Mooren as authority for the proposition that where the policy language gives rise to two logical arguments about the meaning of terms, ambiguity must exist. Mooren v. Economy Fire & Cas. Co., 230 Wis. 2d 624, 629, 601 N.W.2d 853 (Ct. App. 1999). We are not persuaded.

¶ 18. In Mooren, we considered whether the term "recreational land motor vehicle" was ambiguous in the context of snowmobiles. We concluded it was because we determined that the policy language could be read either as limiting the class of vehicles to those with tires or as including vehicles, such as snowmobiles, which operated on crawler treads. Id. at 631-32. The meaning thus depended on whether motor vehicle was treated as a compound word or as two words with separate definitions. We see no similar linguistic ambiguity in the phrase motorized land conveyances. A riding mower works on land, has a motor, and carries or transports its operator. The fact that it performs more than a single function does not mean it ceases to be a "conveyance." Indeed, as most users would agree, a significant purpose of a riding mower is to convey the person mowing the lawn.

¶ 19. While no Wisconsin case law discusses whether a riding mower is a motorized land conveyance for the purposes of a liability policy, Acuity points to several cases in other jurisdictions that have reached similar conclusions. We find the Iowa Supreme Court's logic particularly persuasive. Gracey v. Heritage Mut. Ins. Co., 518 N.W.2d 372, 374 (Iowa 1994). In Gracey, a young boy injured a friend while he was using his uncle's riding mower to cut his grandparents' lawn. Id. at 373. Interpreting language almost identical to that in the Acuity policy here, the court concluded that the exclusion for "motorized land conveyances" applied unambiguously to riding lawn mowers. Id. at 374. As further support for its conclusion, the court noted that if the accident had occurred at the insured location, where coverage would have been expected, an exception for vehicles used to service the insured's property would have operated to provide coverage. Id.

¶ 20. Like the policy in Gracey, the Quellas' Acuity policy includes an exception to the exclusion for motorized land conveyances for vehicles "not subject to motor vehicle registration... [u]sed to service an insured's residence." The Acuity policy would thus also have provided coverage if Quella had been mowing his own lawn when an accident happened. But there would be no need for an exception that restored coverage for riding lawn mowers that service the insured's residence unless the motorized land conveyance exclusion applied to the larger class of riding mowers.

Riding Mowers and Vehicles Designed for Recreational Use

¶ 21. Varda argues alternatively that, if the exclusion is unambiguous, it does not apply because of the exception for vehicles "designed for recreational use off public roads, not subject to motor vehicle registration and not owned by the insured." (Emphasis added). We agree with Varda that a riding mower is designed for use off-road and is not subject to motor vehicle registration. We do not agree that it is designed, in the ordinary meaning of the words, for "recreational use." Rather a riding mower is designed to perform the task of mowing.

¶ 22. According to the relevant dictionary definitions, the noun "recreate" means "to renew or enliven ... to refresh after wearying toil," and "recreation" is "a means of getting diversion or entertainment." Webster's, supra at 1899. We recognize that individuals can find pleasure in many activities, including cutting grass. But that does not mean that all activities from which we derive pleasure involve objects "designed for recreational use." To extend the meaning of this exception so far would, in the trial court's words, "defy common sense as well as ordinary understanding and usage." We thus reject Varda's argument.

The Independent Concurrent Cause Rule

¶ 23. Varda argues lastly that her injury was caused not by the operation of the riding mower, but by the operation of the mower's cutting deck. Therefore, she contends, the cutting deck was an independent concurrent cause of the accident. Acuity responds that the cutting deck could not have caused the injury without being a component part of the riding mower. We agree with Acuity.

¶ 24. When an insurance policy expressly insures against loss caused by one risk, but excludes loss caused by another risk, coverage is extended to a loss caused by the insured risk even though the excluded risk is a contributory cause. Lawver v. Boling, 71 Wis. 2d 408, 422, 238 N.W.2d 514 (1976). An independent concurrent cause must provide the basis for a claim in and of itself, and must not require the occurrence of the excluded risk to make it actionable. Smith v. State Farm Fire & Cas. Co., 192 Wis. 2d 322, 332, 531 N.W.2d 376 (Ct. App. 1995). In Smith, the plaintiffs contended that the exclusion for accidents occurring off the insured location did not apply to a deadly snowmobile crash because the snowmobile drivers' intoxication and the failure to put a helmet on a young passenger were independent concurrent causes. Id. at 331-32. We rejected that argument, concluding that "[wjithout the operation of the snowmobile off an insured location, the injury would not have occurred, intoxication and lack of a helmet notwithstanding." Id. at 332.

¶ 25. The same principle holds true here. Without the operation of the excluded risk, the riding mower, the cutting deck could not have caused the stone to fly up and injure Varda. Varda points out that the mower can be in motion while the cutting deck is not engaged and that the deck can be engaged without the mower being in motion. But neither of these facts alters the reality that, in this case, the cutting deck could not have turned a stone into a dangerous projectile unless it was part of the riding mower, an excluded risk.

By the Court. — Judgment and orders affirmed.

       We granted Ellington's petition for leave to appeal that nonfinal order on November 8, 2004.

       When, as here, both parties move by cross-motion for summary judgment, it is "the equivalent of a stipulation of facts permitting the trial court to decide the case on legal issues." Millen v. Thomas, 201 Wis. 2d 675, 682-83, 550 N.W.2d 134 (Ct. App. 1996).

       Ellington offers this definition of "domestic duties" without citation to authority or analysis.

       The standard dictionary definition of domestic, "relating to the household or the family. . . connected with the supply, service, and activities of the household," is certainly broad enough to include mowing lawns. WebsteR's ThiRD New Int'l DICTIONARY 671 (unabr. 1991)

       The pertinent exclusion reads "[t]he ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured."

       As persuasive authority for the proposition that the phrase is ambiguous,Varda cites a case from Hawaii, Allstate Ins. Co. v. Pacheco, 851 F.2d 257, 259-60 (9th Cir. 1988).

       The statutory definition of "motor vehicle" supports this limited construction.
      Motor vehicle mesáis a self-propelled land motor vehicle designed for travel on public roads and subject to motor vehicle registration under ch. 341. It includes trailers and semitrailers designed for use with such vehicles.
      Wis. Stat. § 632.32(2)(a).
      All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Similarly a Porsche would not cease to be a "conveyance" merely because its owner drove it not for transportation, but for recreation.

       Both an Illinois appeals court and the Iowa Supreme Court have concluded that a riding lawn mower is a motorized land vehicle under a homeowner's policy. See Allstate Ins. Co. v. Eggermont, 535 N.E.2d 1047, 1050 (Ill. App. Ct. 1989); see also Gracey v. Heritage Mut. Ins. Co., 518 N.W.2d 372, 373-74 (Iowa 1994). Varda cites Pacheco as evidence that another jurisdiction has found the phrase "motorized land vehicle" ambiguous in a liability policy. That case involved a moped, however; more importantly, the ambiguity in the policy arose from Hawaii's requirement that insurance provisions be harmonized with relevant statutes. Id. at 259. Because state laws sometimes classify mopeds as motor vehicles and sometimes do not, the Ninth Circuit determined that the policy language was ambiguous. Id.