author: PETERSON, J.

text:
    Julie Mair, Plaintiff-Appellant, v. Trollhaugen Ski Resort and American Home Assurance Company, Defendants-Respondents.
    Court of Appeals

      No. 2004AP1252.

      Submitted on briefs January 31, 2005.

      Decided May 3, 2005.

    2005 WI App 116
    (Also reported in 699 N.W.2d 624.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí Michael J. Brose and Anne E. Schmiege of Doar, Drill & Show, S.C., New Richmond.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Todd Joseph Koback of Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 10-14-05.

   PETERSON, J.

¶ 1. Julie Mair appeals a summary judgment dismissing her safe place claim against Trollhaugen Ski Resort. The trial court concluded that injuries Mair sustained after falling in a bathroom arose from a structural defect, so her claim was barred by the ten-year builder's statute of repose, Wis. Stat. § 893.89. Mair claims the statute of repose does not apply to claims brought under the safe place statute, Wis. Stat. § 101.11. We affirm the judgment.

BACKGROUND

¶ 2. On January 23, 2001, Mair was skiing at Trollhaugen. At some point, she went into the bathroom, where she stepped on a recessed floor drain, lost her footing and fell, breaking her leg. The resort was constructed in 1976 and there have been no modifications to the bathroom. Larry Seiberlich, an architect specializing in environmental behavior, testified at a deposition that, according to industry standards, the drain should be level with the floor.

¶ 3. Mair filed suit against Trollhaugen alleging common law negligence and violation of the safe place statute. Trollhaugen moved for summary judgment, arguing Mair's claims were barred by Wis. Stat. § 893.89, which contains a ten-year statute of repose for claims arising out of a design or construction defect. Because the resort was constructed in 1976, Trollhau-gen argued any claims relating to the design or construction of the bathroom were barred after 1986.

¶ 4. At the hearing on the motion, Mair conceded that her negligence claim was barred by the statute of repose. However, she argued that her safe place claim was not barred because the safe place statute imposes an ongoing duty to keep a structure safe. The circuit court agreed with Trollhaugen and granted its summary judgment motion.

DISCUSSION

¶ 5. Our review of a trial court's grant of summary judgment is independent. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984). Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751. This case also involves interpretation of the statute of repose and safe place statute. We review questions of statutory interpretation independently. State v. Sveum, 2002 WI App 105, ¶ 5, 254 Wis. 2d 868, 648 N.W.2d 496.

¶ 6. Mair contends her safe place claim is not barred by the statute of repose. She argues that the statute of repose only applies to common law negligence, not to the safe place statute. She says the ten-year statute of repose is restricted to negligent acts at the time of construction. The safe place law, on the other hand, is not limited to the initial construction but imposes an ongoing duty to furnish a safe place.

¶ 7. We agree that the safe place law is not limited to initial construction. However, it does cover the initial construction. It covers both the construction and the ongoing duty to keep premises safe. We conclude that the construction is covered by the statute of repose. Any later safe place claims are not.

¶ 8. The statute of repose, Wis. Stat. § 893.89, provides:

(1) In this section, "exposure period" means the 10 years immediately following the date of substantial completion of the improvement to real property.
(2) Except as provided in sub. (3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, against the owner or occupier of the property or against any person involved in the improvement to real property after the end of the exposure period, to recover damages for any injury to property, for any injury to the person, or for wrongful death, arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property.

In other words, no claim may be made after the ten years for any injury arising out of a defect in design or construction of a building.

¶ 9. The safe place statute requires that an owner furnish a place which "shall be safe.. . Wis. Stat. § 101.11(1). This is accomplished by requiring the owner to "construct, repair or maintain" the building safely. Id.

¶ 10. Both the statute of repose and the safe place statute explicitly address construction. We see no ambiguity in either statute. Nor has Mair argued that either statute is ambiguous. If a statute is not ambiguous, we must apply its plain meaning. State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Therefore, we conclude that to the extent Mair's safe place claim is based on defective construction of the bathroom floor, the claim is barred by the ten-year statute of repose.

¶ 11. Mair argues, however, that the safe place statute imposes an ongoing duty to furnish a safe building. She is correct. The owner's duty has three parts: (1) construct, (2) repair and (3) maintain. See Wis. Stat. § 101.11(1). Even though liability for a defective construction may be eliminated by the statute of repose, the owner still has a continuing responsibility to repair and maintain the premises.

¶ 12. But here we encounter another flaw in Mair's argument: lack of notice. Generally, an owner is liable for two types of conditions that cause injury: (1) structural defects; and (2) unsafe conditions associated with the structure of the building. See Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 639-40, 284 N.W.2d 318 (1979); see also Howard H. Boyle, Jr, Wiscosnin Safe-Place Law Revised 139 (1980). A structural defect "arises from a breach of the statutory duty to construct a safe building." Rizzuto v. Cincinnati Ins. Co., 2003 WI App 59, ¶ 28, 261 Wis. 2d 581, 659 N.W.2d 476. The owner is liable "regardless of whether he or she knew or should have known that the defect existed." Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶ 22, 245 Wis. 2d 560, 630 N.W.2d 517. However, as we have already pointed out, a defect based on failure to construct a safe building is barred by the statute of repose.

¶ 13. The second type of condition is an unsafe condition associated with the structure of the building. This "arises when an originally safe structure is not properly repaired or maintained." Rizzuto, 261 Wis. 2d 281, ¶ 13. It "arises from a breach of the statutory duty to repair or maintain. ..." Barry, 245 Wis. 2d 560, ¶ 28. In this situation, the owner is liable only if the owner had actual or constructive notice of the defect. Rizzuto, 261 Wis. 2d 281, ¶ 13.

¶ 14. Here, there is no evidence of actual or constructive notice that the recessed drain was unsafe. No one had ever fallen in this location before, and there is no evidence that Trollhaugen knew, or in the exercise of reasonable care should have known, that the condition was unsafe. Therefore, Trollhaugen cannot be held liable for violating an ongoing duty to keep the premises safe.

By the Court. — Judgment affirmed.

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

       Mair also filed suit against the resort's insurer, American Home Assurance Company.

       Employers have an additional liability for unsafe conditions unassociated with the structure. However, as the owner of a public building, Trollhaugen's liability for maintenance is limited to conditions associated with the structure. See Howaed H. Boyle, Jr, Wisconsin Saee-Plaoe Law Revised 139 (1980).

       Mair makes two other arguments: the trial court erred in characterizing the defect as structural under the safe place law, and there is a factual dispute as to whether the defect was an unsafe condition under the safe place law. Given our holding, it is not necessary to address these arguments.


source: Caselaw Access Project

author: ANDERSON, PJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Kimberly B., Defendant-Appellant.

    Court of Appeals

      No. 2004AP1424-CR.

      Submitted on briefs March 31, 2005.

      Decided May 4, 2005.

    2005 WI App 115
    (Also reported in 699 N.W.2d 641.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Anthony Milisauskas of Anthony Milisauskas, S.C., Kenosha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, RJ., Nettesheim and Snyder, JJ.

       Petition to review denied 8-25-05.

   ANDERSON, PJ.

¶ 1. Kimberly B. appeals from a judgment of conviction for intentionally causing bodily harm to a child for whom she was responsible, contrary to Wis. Stat. §§ 948.03(2)(b) and (5) (2001-02). The conviction relates to an incident in a mall parking lot where two loss prevention officers witnessed Kimberly repeatedly punch and verbally abuse her nine-year-old daughter. Kimberly raises two primary issues for our review: (1) whether there was sufficient evidence to enable a reasonable jury to find her guilty of physical abuse of her daughter and to negate her defense of reasonable discipline and (2) whether the trial court properly admitted evidence that on two separate occasions prior to the charged crime, Kimberly had hit her daughter with a belt or an extension cord.

¶ 2. We hold that there was sufficient evidence to allow a reasonable jury to conclude that Kimberly intentionally caused bodily harm to her daughter in violation of Wis. Stat. §§ 948.03(2)(b) and (5). We further hold that there was sufficient evidence to allow a reasonable jury to conclude that the amount of force Kimberly used to punish her daughter was unreasonable and therefore the parental privilege of reasonable discipline did not apply. Finally, we conclude that the trial court properly determined that the other acts evidence passed muster under the three-step test articulated in State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). We affirm the judgment of conviction.

Facts

¶ 3. On July 26, 2002, the State filed a criminal complaint against Kimberly, charging her with one count of physical abuse of a child in violation of Wis. Stat. § 948.03(2)(b). According to the complaint, on July 25 in the parking lot of the Prime Outlet Mall in Kenosha county, Kimberly repeatedly hit her nine-year-old daughter, Jasmine, with a closed fist while telling her to "shut up" and "stop crying" and calling her a "big fat slut." The complaint stated that Kimberly also hit Jasmine with an umbrella. The complaint further alleged that the police officer dispatched to the scene observed a bruise and swelling beneath Jasmine's right eye, marks on her left arm and a portion of skin that had been peeled off due to being hit with the umbrella. The State filed an information in September invoking both § 948.03(2) (b) and the penalty enhancer provision in § 948.03(5) for a person "responsible for the welfare" of the child-victim.

¶ 4. Prior to the jury trial, the State filed a motion to introduce other acts evidence pursuant to Wis. Stat. § 904.04(2). The State sought to introduce evidence that Kimberly, in the name of discipline, had physically abused Jasmine in 1995 and 1999 by whipping her with a belt or an extension cord. Kimberly objected to the introduction of such evidence. After carefully walking through each step of the Sullivan test, the trial court determined that the State's other acts evidence was admissible.

¶ 5. The jury trial was held on June 2 and 3, 2003. The State called to testify: the two loss prevention officers who witnessed the incident in the parking lot, the police officer dispatched to the scene, a social worker who investigated the report of abuse, Jasmine, and three other acts witnesses. The defense called a longtime friend of Kimberly's who observed Jasmine on the night of, and the night following, the incident. Because Kimberly challenges on appeal the sufficiency of the evidence presented at trial and the propriety of the other acts witnesses, we will summarize relevant portions of each witness' testimony below.

¶ 6. Christina Albritton and Edmund Cobb were working as loss prevention officers for a store in the Prime Outlet Mall on July 25, 2002. As they sat in Cobb's van in the parking lot monitoring customers, they heard "yelling" from a nearby minivan. Cobb and Albritton testified that they saw a woman leaning into the minivan through a sliding door and yelling at a crying girl. They gave similar accounts at trial of what they then observed take place in the minivan.

¶ 7. Albritton recounted:

I looked over, and I saw the woman holding the child by her arms, and I heard her yelling at her to stop crying; and then the girl yelled back at her, mommy, stop hitting me; and then I saw the woman reach back with a closed fist and start hitting the child. The child was kind [of] cowering down and kind of covering and moving around so she wasn't hitting her in any specific place.

Albritton stated she not only saw the woman punch the girl "about six times," but also "heard the fist make contact with the child as well." Albritton testified that the girl did not fight back but was crying and pleading with the woman to stop hitting her. Albritton reported that the woman kept telling the girl to "shut up" and "stop crying" and called the girl a "big fat slut." According to Albritton, the woman "seemed completely just filled with rage and anger. Just consumed by it."

¶ 8. Cobb testified that the woman initially slapped the girl two or three times "with an open hand." He recalled the woman then "closing her fist" and, with "a full swing" of her arm, punching the girl "eight or nine times." Cobb said the girl sounded "scared" as she asked the woman to stop hitting her and tried to block the punches. Cobb indicated that the woman appeared "very angry," to the point of being "out of control."

¶ 9. Albritton testified that she was afraid to get into a physical confrontation with the woman and that before the punching had stopped, she ran into a store at the mall and called the police. Pleasant Prairie Police Officer Sandra Thomey responded to the dispatcher's report of possible domestic violence at the mall.

¶ 10. Thomey first spoke with Jasmine, who had tears in her eyes, outside a mall store. Thomey also noticed that Jasmine had "swelling underneath her . . . right eye" and a "red abrasion" and bruise just below her eyebrow. She stated that Jasmine's right arm displayed a "handprint mark" and a fresh area where the "skin was peeled back from being poked." Albritton also testified about her observations of Jasmine's physical appearance after Thomey arrived. She said "one of [Jasmine's] eyes was beginning to be puffy. I could see swelling and redness and some bruising." She said Jasmine "was starting to get a black eye" and that she had "welts" and a "hand mark" on one arm, where "a piece of the skin was missing." Despite the presence of injuries, Thomey testified that she did not think Jasmine needed medical treatment other than an ice bag, which Jasmine later rejected in favor of a soda.

¶ 11. Thomey described Jasmine as being quiet and scared when she interviewed her outside the mall store. She said that Jasmine gave different versions of what had happened that day. Jasmine told Thomey that her mother had either "spanked" her or "slapped" her hands for "acting out," "sassing" her mother and "picking on the other kids." When she asked Jasmine how she had hurt her eye, Jasmine first said that she had fallen and then said her brother had hit her in the eye two months earlier.

¶ 12. After her partner arrested Kimberly, Th-omey resumed interviewing Jasmine at the police station. According to Thomey, Jasmine informed her that her mother had pulled her out of a store by the arm and slapped her hands because she had stepped on another girl's foot. Jasmine said her mother became increasingly angry the more that she cried and that when they arrived at their minivan her mother began punching her with a closed fist "in the arms and in the legs [and] ... all over." Thomey said Jasmine also reported that her mother had poked and hit her with an umbrella in the right arm, causing the skin to peel back, which she said "hurt very much." Jasmine informed Thomey that her mother had called her "a fat slut," something her mother said when Jasmine had been a "bad girl."

¶ 13. Jasmine also testified about the events at the mall parking lot. Jasmine testified that she hit one of the other children in her group with a bag and stepped on her foot when her mother refused to purchase items for her that she wanted. Jasmine said she also "started throwing down shoes" in a shoe store when her mother refused to buy shoes for her. She said her face and arm hurt that day, but that her mother only hit her on the hand and arm. She said her mother did not call her a name, yell at her, or hit her with an umbrella. She testified that she missed her mother and was afraid of what could happen to her mother.

¶ 14. Carisa Phinisee, a state-employed child abuse investigator in Milwaukee, testified that she interviewed Jasmine after the mall incident. Jasmine told Phinisee that her mother had hit her with a closed fist "lots of times" in the minivan and that her mother had hit her with an umbrella.

¶ 15. The State also presented three other acts witnesses. Before each other acts witness testified at trial, the trial court instructed the jurors that they should only consider such testimony "on the issues of [Kimberly's] knowledge, intent, [and/or] absence of mistake or accident." The jurors also were instructed that they could not consider such testimony to conclude that Kimberly had a certain character or character trait or that Kimberly acted in conformity therewith with respect to the charged crime.

¶ 16. Milwaukee Police Sergeant Joenette Kelly-Kidd and child protective services manager Dena Lucoff testified about the 1995 incident. Kelly-Kidd stated that on November 8 of that year, she responded to a day care center. According to Kelly-Kidd, Jasmine, then age two, had "[l]oop marks on [her] lower body." Jasmine told the sergeant that "Mommy whooped me." Kelly-Kidd said the loop marks indicated that Jasmine had been struck with an object, most likely a belt or an extension cord. When Kelly-Kidd asked Kimberly about Jasmine's injuries, Kimberly admitted hitting Jasmine with an extension cord to discipline her. Lucoff also testified that Jasmine had "loop marks" on her thigh and that Jasmine had told her that her "mamma whooped" her. Lucoff further testified that Kimberly informed her that she had "whooped [Jasmine]" because Jasmine had removed some of her clothing at the day care.

¶ 17. Angela Hanick-Cook, Jasmine's first-grade teacher, testified about the 1999 incident. Hanick-Cook testified that Jasmine "came up to her desk, and she showed me all her bruises on her back and her arms and legs." According to Hanick-Cook, Jasmine tearfully explained that she had spilled some oil on her mother's dresser and her mother had beat her with a belt. Hanick-Cook recalled that Jasmine was afraid to go home that day. Hanick-Cook stated that she had contacted social services to report the situation.

¶ 18. Finally, Dawn Smith, a longtime friend of Kimberly's and a former protective services worker, testified for the defense. She stated that on the night of the incident at the mall, she examined Jasmine and found no marks, bruises or swelling.

¶ 19. At the close of the evidence, the trial court again gave the jury the cautionary instructions about the other acts evidence the State introduced. The court also instructed the jury that because discipline of a child was an issue in the case, the State had to prove beyond a reasonable doubt that Kimberly did not act reasonably in disciplining Jasmine. The court then proceeded to give the standard jury instruction for the parental privilege of reasonable discipline. See Wis JI — Criminal 950. The jury found Kimberly guilty of physical abuse of a child for whose welfare she was responsible, contrary to Wis. Stat. §§ 948.03(2)(b) and (5). Kimberly appeals from the judgment of conviction.

Sufficiency of the Evidence

¶ 20. Kimberly argues that the evidence before the jury was insufficient to support her conviction for two reasons. She first seems to suggest that the evidence adduced at trial did not support two of the elements of the crime for which she was convicted. Next, Kimberly challenges the sufficiency of the evidence to negate her affirmative defense of parental privilege to use reasonable discipline. After setting forth the appropriate standard of review, we will address each of Kimberly's two sufficiency of the evidence contentions in turn.

¶ 21. Standard of Review. The test for reviewing the sufficiency of the evidence to support a verdict is whether the evidence, viewed most favorably to the State and the conviction, is so lacking in probative value and force that no reasonable jury could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it. Id. Our consideration of the record includes even evidence which was erroneously admitted. State v. Smith, 2004 WI App 116, ¶ 32, 275 Wis. 2d 204, 685 N.W.2d 821, review granted, 2004 WI 123, 275 Wis. 2d 295, 687 N.W.2d 522 (Wis. Aug. 2, 2004) (No. 2003AP1698-CR).

¶ 22. Sufficiency of the Evidence to Convict Kimberly of Physical Abuse of a Child. The crime of physical abuse of a child, as applied to the matter at hand, requires proof beyond a reasonable doubt of the following three elements: (1) Kimberly caused bodily harm to Jasmine, (2) Kimberly intentionally caused such harm, and (3) Jasmine had not attained the age of eighteen years at the time of the alleged offense. See Wis JI— Criminal 2109. Additionally, for the penalty enhancer to apply, the State had to prove beyond a reasonable doubt that Kimberly was responsible for Jasmine's welfare at the time of the incident. See Wis. Stat. § 948.03(5).

¶ 23. Kimberly appears to challenge only the first and second elements of the crime of physical abuse of a child — that Kimberly caused Jasmine to suffer bodily harm and Kimberly intended to cause such harm. Kimberly points out that Jasmine testified at trial that on the day of the incident her mother did not hit her in the face or on the arm with an umbrella. Kimberly also relies on the facts that in her original report to the police Albritton did not mention seeing visible injuries on Jasmine and that in Thomey's opinion Jasmine did not need medical treatment following the alleged incident. The State responds that the jury could have reasonably relied upon the other testimony presented at trial to reach its determination that the challenged elements of the crime of physical abuse of a child were satisfied beyond a reasonable doubt. We agree with the State and reject the first of Kimberly's sufficiency of the evidence challenges.

¶ 24. Underlying Kimberly's argument is the assumption that for the bodily harm element to be met, the harm to the victim must be severe enough that he or she receives some form of medical treatment. However, the definition of bodily harm for purposes of Wis. Stat. § 948.03(2)(b) contains no such requirement. Bodily harm is defined simply as "physical pain or injury, illness, or any impairment of physical condition." Wis JI — Criminal 2109; see also Wis. Stat. § 939.22(4); State v. Higgs, 230 Wis. 2d 1, 14-15, 601 N.W.2d 653 (Ct. App. 1999) (concluding that the element of "bodily harm" was established where the victim simply experienced a burning and stinging sensation in his eyes caused by contact with urine).

¶ 25. Two witnesses testified that Jasmine suffered some form of physical pain, injury or impairment on the date of the incident. Thomey testified that Jasmine had swelling underneath her eye and an abrasion and a bruise just below her eyebrow. She further observed that Jasmine's right arm had a handprint mark and an area where the skin was peeled back from being poked. Albritton, who witnessed the incident, noticed that one of Jasmine's eyes was bruised, red and swollen and that she had welts and a hand mark on her arm. She also noted that a piece of skin was missing on the one arm. Although Albritton did not include her observations of Jasmine's injuries in her written report, she did testify that there were details of the incident that she left out of her statement. The jury was certainly well within its rights to adopt as credible this testimony of Thomey, a police officer, and Albritton, a member of the security staff, and reject the testimony suggesting Jasmine suffered no bodily harm from both Jasmine herself, a young child afraid of what might happen to her mother, and Smith, a longtime friend of Kimberly's. See State v. Toy, 125 Wis. 2d 216, 222, 371 N.W.2d 386 (Ct. App. 1985) ("It is the jury's task . . . not this court's, to sift and winnow the credibility of the witnesses. We review sufficiency of evidence claims most favorably to the jury's findings. It is certainly allowable for the jury to believe some of the testimony of one witness and some of the testimony of another witness even though their testimony, read as a whole, may be inconsistent." (Citations omitted.)).

¶ 26. Furthermore, although Jasmine testified at trial that her mother did not hit her in the face or on the arm with an umbrella, four of the State's witnesses identified Kimberly as the cause of Jasmine's bodily harm on July 25. Albritton testified that she saw Kimberly punch Jasmine with a closed fist "about six times." Cobb reported that he saw Kimberly slap Jasmine two or three times with an open hand, and then punch Jasmine eight or nine times with a closed fist. Thomey testified that Jasmine had told her that her mother had slapped her on the hands, punched her all over and hit her with an umbrella. Phinisee testified that some time after the incident Jasmine indicated that her mother had hit her with a closed fist several times and poked her with an umbrella. From the testimony of these witnesses, the jury could comfortably conclude that, contrary to Jasmine's trial testimony, Kimberly had been the cause of Jasmine's bodily harm. See id. (jury determines credibility of witnesses and resolves conflicts in testimony).

¶ 27. Finally, the intent element of Wis. Stat. § 948.03(2)(b) requires the State to prove that Kimberly had the mental purpose to cause bodily harm to Jasmine or was aware that her conduct was practically certain to cause that result. See Wis JI — Criminal 2109. The jury was properly instructed in this case that it could determine Kimberly's intent directly or indirectly from all of the evidence, including Kimberly's own conduct and statements. See id.

¶ 28. The jury had before it evidence that Kimberly aggressively punched Jasmine with a closed fist anywhere from six to nine times. Indeed, Cobb said Kimberly took a full swing of her arm while punching Jasmine and Albritton reported that Kimberly punched Jasmine so hard that she actually heard the contact being made. The jury also heard Albritton's testimony that Kimberly was "consumed" by anger while she was punching Jasmine, even going so far as to call her a "big fat slut." Further, the other acts witnesses presented testimony demonstrating that Kimberly knew when her use of physical force would cause an unacceptable degree of bodily harm. According to the other acts witnesses, on two prior occasions in the name of discipline, Kimberly had "whooped" Jasmine so hard with a belt or an extension cord that they left marks and bruises on her body and prompted government intervention. From this evidence the jury could, with reason, infer that Kimberly had the mental purpose to cause bodily harm to Jasmine or was, at the very least, aware that her use of physical force in the form of closed-fisted punching was practically certain to harm Jasmine. See Wis JI — Criminal 2109.

¶ 29. Sufficiency of the Evidence to Negate the Parental Privilege of Reasonable Discipline. Pursuant to Wis. Stat. § 939.45(5), a person responsible for the welfare of a child, such as a parent, enjoys a privilege to reasonably discipline the child by use of physical force. Section 939.45(5)(b) provides that a parent's conduct is privileged:

When the actor's conduct is reasonable discipline of a child by a person responsible for the child's welfare. Reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death.

This privilege constitutes an affirmative defense to a criminal charge of physical abuse of a child under Wis. Stat. § 948.03. See § 939.45 ("The fact that the actor's conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct."). Once parental privilege is raised as an affirmative defense, the burden shifts to the State to disprove the parental privilege defense beyond a reasonable doubt. See State v. Trentadue, 180 Wis. 2d 670, 674, 510 N.W.2d 727 (Ct. App. 1993) (citing State v. Stoehr, 134 Wis. 2d 66, 84 n.8, 396 N.W.2d 177 (1986)).

¶ 30. While Wis. Stat. § 939.45(5) recognizes the right of a parent to inflict corporal punishment to correct or discipline a child, that right of parental discipline has its limits. Kimberly seems to suggest that the statute prohibits only force that is "intended to cause great bodily harm or death" or that "create[s] an unreasonable risk of great bodily harm or death." However, we agree with the State that the plain language of §939.45 requires that (1) the use of force must be reasonably necessary; (2) the amount and nature of the force used must be reasonable; and (3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. If parental conduct fails to satisfy even one of these prongs, then the parent is not protected by the privilege. Thus, to overcome the privilege of parental discipline in Wisconsin, the State must prove beyond a reasonable doubt that only one of these three prongs is not present.

¶ 31. Here, the State concedes that a reasonable jury could find that it was reasonably necessary for Kimberly to use physical force to discipline Jasmine in the Kenosha mall parking lot on the day in question. Jasmine admitted that she had been "acting out" in the mall, pulling merchandise off shelves and hitting another child in her group. The State instead maintains that there was sufficient evidence for the jury to conclude that the amount and nature of the force Kimberly used was excessive and unreasonable under the circumstances. We agree and reject the second of Kimberly's sufficiency of the evidence challenges.

¶ 32. Reasonable force is that force which a reasonable person would believe is necessary. Wis JX— Criminal 950. Whether a reasonable person would have believed the amount of force used was necessary and not excessive must be determined from the standpoint of the defendant at the time of the defendant's acts. Id. The standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offense. Id.

¶ 33. "The test of unreasonableness is met at the point at which a parent ceases to act in good faith and with parental affection and acts immoderately, cruelly, or mercilessly with a malicious desire to inflict pain, rather than make a genuine effort to correct the child by proper means." State v. Thorpe, 429 A.2d 785, 788 (R.I. 1981). There is no inflexible rule that defines what, under all circumstances, is unreasonable or excessive corporal punishment. Id. Rather, the accepted degree of force must vary according to the age, sex, physical and mental condition and disposition of the child, the conduct of the child, the nature of the discipline, and all the surrounding circumstances. See Wis JI — Criminal 950.

¶ 34. Here, the jury had before it evidence that Kimberly meted out aggressive physical punishment in response to Jasmine's misbehavior inside of the mall. According to Albritton's and Cobb's testimony, Kimberly first slapped Jasmine and then proceeded to verbally abuse and punch Jasmine, who was nine years old and confined inside a minivan, with a closed fist anywhere from six to nine times. Their testimony also reveals that Kimberly was "out of control" with anger when she assaulted Jasmine — refusing to relent despite Jasmine's pleas.

¶ 35. The jury heard testimony establishing that Jasmine sustained multiple visible injuries as a result of Kimberly's actions. According to Albritton and Thomey, Kimberly's actions left an abrasion, a bruise, a swelled eye, and welts and a handprint mark on Jasmine. Common sense would have informed the jury that Kimberly's punches and slaps to Jasmine's face and body could have caused far more serious injuries.

¶ 36. Finally, the jury had before it evidence from which it could have inferred that Kimberly was aware of when her use of physical force against Jasmine exceeded acceptable norms. The testimony of the other acts witnesses established that Kimberly on two prior occasions had used physical force sufficient to cause visible marks and injuries and to require official intervention.

¶ 37. Given the evidence before the jury concerning the aggressive nature of the physical punishment, the actual injuries sustained and Kimberly's demeanor and prior knowledge, the jury could reasonably conclude that Kimberly was not making a genuine effort to discipline Jasmine by proper means for her inappropriate behavior in the mall and that she instead was resorting to excessive and unreasonable force, abusive rather than corrective in nature. Because there was sufficient evidence to support this determination, the jury properly rejected Kimberly's affirmative defense of parental privilege of reasonable discipline.

Other Acts Evidence

¶ 38. Kimberly also seeks a new trial on the ground that the trial court erred in admitting the other acts evidence that on two prior occasions Kimberly had hit Jasmine with an extension cord or a belt, leaving marks and bruises that prompted government intervention. We review a trial court's decision to admit evidence under a discretionary standard. State v. Veach, 2002 WI 110, ¶ 55, 255 Wis. 2d 390, 648 N.W.2d 447. The question on review is not whether this court would have allowed admission of the evidence in question. Id. Instead, if the trial court "examined the relevant facts; applied a proper standard of law; and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach," we will affirm its decision. Id. (citation omitted).

¶ 39. The analysis of other acts evidence culminated in our supreme court's delineation of a three-step analytical framework for attorneys and courts to follow in determining whether other acts evidence is admissible. Sullivan, 216 Wis. 2d at 771-72.

(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?
(2) Is the other acts evidence relevant, considering the two facets of relevance set forth in Wis. Stat. § (Rule) 904.01? The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration in assessing relevance is whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence.
(3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence? See Wis. Stat. § (Rule) 904.03.

Sullivan, 216 Wis. 2d at 772-73 (footnote omitted).

¶ 40. Here, the trial” court concluded that the other acts evidence was relevant and admissible to prove the intent element of Wis. Stat. § 948.03(2)(b) and to disprove Kimberly's reasonable discipline defense by showing "the absence of mistake or accident" regarding "the kind of knowledge that [Kimberly] brings to the question of parental discipline." We agree. The testimony that Kimberly, in an attempt to discipline Jasmine, had resorted on at least two prior occasions to striking Jasmine with force sufficient to cause visible physical injuries and require government intervention tended to show that Kimberly also intended to cause physical injury to Jasmine when she was allegedly disciplining her in the mall parking lot. From the evidence that the police and other officials had been called to investigate prior occasions where Kimberly had physically harmed Jasmine, the jury could reasonably infer that Kimberly knew when her use of physical force against Jasmine was an unreasonable and excessive form of punishment. Thus, the evidence of the prior disciplinary acts suggests that it is more probable than not that Kimberly intended to cause physical harm to Jasmine that exceeded acceptable norms for instructive discipline.

¶ 41. Additionally, the trial court concluded that the probative value of the evidence was not substantially outweighed by any unfair prejudice. Again, we agree. The probative value of other acts evidence depends on its nearness in time, place, and circumstance to the crime alleged. State v. Speer, 176 Wis. 2d 1101, 1117, 501 N.W.2d 429 (1993). As explained, the other acts evidence was highly relevant to prove that Kimberly intentionally caused bodily harm to Jasmine and to disprove Kimberly's defense of reasonable discipline. Here, although the other acts episodes were several years apart, the episodes involved the same child, similar injuries and similar claims of parental discipline for similar types of purported child misbehavior, and each required some form of government intervention. Moreover, the trial court minimized any risk of unfair prejudice to Kimberly by its jury instructions. The court instructed the jurors four separate times — before each of the three other acts witnesses testified and again in its final instructions — that they could not consider the other acts evidence to conclude that Kimberly was of bad character or had acted in conformity therewith to commit the charged crime. Such cautionary instructions "eliminate or minimize the potential for unfair prejudice." State v. Hammer, 2000 WI 92, ¶ 36, 236 Wis. 2d 686, 613 N.W.2d 629; see also State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992) (jurors are presumed to follow such cautionary instructions). Accordingly, the trial court's determination that the other acts evidence should be admitted had a reasonable basis and the trial court did not erroneously exercise its discretion.

Conclusion

¶ 42. In summary, we hold that sufficient evidence supported Kimberly's conviction for intentionally causing bodily harm to a child, contrary to Wis. Stat. §§ 948.03(2)(b) and (5). We further affirm the trial court's decision to admit the other acts evidence because it satisfied all three prongs of the three-part Sullivan test for admissibility.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. We note that the legislature has since amended Wis. Stat. § 948.03(2)(b) and repealed § 948.03(5). 2001 Wis. Act 109, §§ 888,895. These changes, however, occurred after the crime was committed and Kimberly was charged.


author: DEININGER, PJ.

text:
    Mark J. Steichen, Plaintiff-Appellant, v. Wayne Hensler, Defendant-Respondent.
    Court of Appeals

      No. 2003AP2990.

      Submitted on briefs September 8, 2004.

      Decided May 5, 2005.

    2005 WI App 117
    (Also reported in 701 N.W.2d 1.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Mark J. Steichen of Board-man, Suhr, Curry & Field, LLP, Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Jennifer Weber and Vicki Zick of Zick & Weber Law Offices, LLP, Johnson Creek.
    Before Deininger, EJ., Dykman and Vergeront, JJ.
   DEININGER, PJ.

¶ 1. This appeal involves an attorney fee arbitration award obtained under the State Bar of Wisconsin's fee arbitration program. The circuit court declined to confirm a fee arbitration award in favor of attorney Mark Steichen against his former client, Wayne Hensler. Instead, the court entered a judgment vacating the award after determining that Steichen had obtained the award by fraud. See Wis. Stat. § 788.10(l)(a) (2003-04). Steichen claims the circuit court erred by applying the wrong legal standards in denying his motion for summary judgment and in granting judgment to Hensler. We agree that the circuit court erred by not confirming the arbitration award on summary judgment. Accordingly, we reverse the appealed judgment and direct that a judgment confirming the award be entered on remand.

BACKGROUND

¶ 2. Wayne Hensler retained attorney Mark Ste-ichen in March 2001. At the time, Hensler was involved in pending litigation with his ex-wife relating to a generation-skipping trust he had established during his marriage. On June 12, 2001, Steichen wrote to Hensler, informing him as follows:

As you and I have discussed, you have decided to cooperate with [Hensler's ex-wife] in investigating and probably bringing a lawsuit against [the trustee], rather than fighting with [her] in the divorce case over the trust....
At the time that you hired me and this firm to represent you, you were on the same side as [the trustee] and the goal was to defend you and the trust against [Hensler's ex-wife]'s claims. Now your goals and intentions have changed to pursuing a claim against [the trustee]. I have learned recently that one of my partners represents Mark Williams, who was involved in the preparation of the. . . [t]rust. This was not an issue when you were on the same side as [the trustee]. However, now that your goal is to pursue a claim against [the trustee], there is the potential that Mark Williams could be made a party to such a lawsuit....

The letter went on to explain that because of the apparent or actual conflict of interest, Steichen and his firm could not continue to represent Hensler.

¶ 3. Hensler refused to pay Steichen's final bill for $1,727.75 in fees and disbursements. He accused Ste-ichen in August 2001 of being a liar, saying that "I wanted you to work with [an attorney who represented Hensler in the divorce] after he told me ... that [the trustee] lied to me when they sold me the trust."

¶ 4. The parties agreed to submit the fee dispute to the State Bar of Wisconsin's fee arbitration program. In his application for fee arbitration, in response to the question, "For what type of case of legal services was the attorney employed?" Hensler wrote in "divorce." Hen-sler described the "nature of the dispute" and his position as follows:

On or about May (sic) 7, 2001,1 retained Atty Steichen as co-counsel... for my divorce. A short time later, Atty Steichen informed me that he could not represent me due to a conflict of interest. Apparently, Atty Steichen's office represented the opposing party in my case & could not represent me. He performed no legal work for me.

Finally, Hensler checked "yes" below the question, "DO YOU AGREE TO BE BOUND BY THE RESULT OF THE ARBITRATION?"

¶ 5. In his response, Steichen also agreed to be bound by the result of the fee arbitration. Steichen explained that Hensler had been a client of Steichen's firm and that their oral agreement was that Hensler would be billed "on the same hourly basis that we had in the past." Steichen confirmed that he was retained for a matter "relating to a divorce action that was pending." The divorce had been granted, but Hensler's ex-wife's request "to dissolve a trust the two had entered into" remained pending. According to Steichen, Hensler's ex-wife "had made serious allegations of abuse and undue influence" against Hensler as grounds for dissolving the trust. Steichen stated in the response that the initial purpose of his representation was two-fold:

First, [Hensler] felt that he had been treated unfairly in the divorce judgment. He wanted me to review the matter to see if it had been handled appropriately . . . and if any changes could be made in the division of assets and liabilities. Second, he asked me to help in the defense of the trust matter. Mr. Hensler wanted to preserve the trust to keep the assets from being subject to division as marital property and to ensure that they would be available for his grandchildren.

¶ 6. Steichen also asserted in his fee-arbitration response that he "spent considerable time listening to Mr. Hensler about what he felt was unfair about the divorce outcome, going through the file, and discussing it with [Hensler's divorce counsel]." Steichen concluded that no purpose would he served by moving to reopen the divorce judgment, and stated that he spent considerable time with Hensler explaining the provisions of the divorce judgment and his conclusions regarding them. As to the trust matter, Steichen asserted that, soon after his engagement, "the case took a change in course." Hensler's ex-wife's new counsel "offered essentially to withdraw their claims against Mr. Hensler regarding the trust if Mr. Hensler agreed to cooperate in a fraud action against the company that administered the trust."

¶ 7. At about this same time, according to Steichen's response, "Hensler's attitude toward the trust also changed considerably as he began to receive statements from the trust company showing large fees and declines in the value of the trust." Steichen stated that, at that point, he explained to Hensler the potential conflict noted in the June 12th letter. Steichen asserts that he terminated his representation of Hen-sler after assisting "in negotiating an agreement" with Hensler’s ex-wife's counsel for dismissal of her claims against him regarding the establishment of the trust in return for Hensler's cooperation in pursuing a claim against the trust company. He noted that Hensler's ex-wife's claims against Hensler regarding the establishment of the trust were in fact dismissed in July 2001, "without further expense or risk to Mr. Hensler. I considered this a very successful outcome for Mr. Hen-sler."

¶ 8. The fee dispute was then submitted to an arbitrator. The circuit court record contains no transcript of the arbitration proceedings. The arbitrator noted in his decision that both parties had agreed in writing to arbitrate the dispute, that both appeared in person and gave sworn testimony and that each "was given the opportunity to cross-examine the other." The arbitrator explained in his "statement of the dispute" that Hensler had retained Steichen "for the purpose of opposing the request to invalidate the Trust." The arbitrator awarded Steichen $1,727.75, the full amount reflected on the final statement to Hensler. The award was based on the following findings by the arbitrator:

A. Mr. Hensler retained Mark Steichen to represent him.
B. Mr. Hensler received regular and detailed billing statements with regard to services rendered.
C. The services rendered appear to have been necessary and within the scope of representation of Mr. Hensler by Attorney Steichen.
D. A change in strategy resulted in the discovery of a conflict of interest which required Attorney Steichen to cease his representation of Mr. Hensler.
E. No complaints or disputes or questions regarding the billing for attorney's fees were raised until after the termination of Attorney Steichen's representation of Mr. Hensler.
F. Mr. Hensler was properly billed for services rendered through June 12, 2001. Mr. Hensler was credited with the $1,000 payment he made.

¶ 9. Steichen filed a small claims action to confirm the fee arbitration award. Hensler answered, alleging that Steichen had procured the award by "fraud or undue means." Hensler asserted that Steichen "attested at fee arbitration" that Steichen had "first became aware on June 12, 2001" of the potential conflict of interest, which Hensler asserted was "simply untrue." Hensler alleged that he "immediately told [Ste-ichen] that I wanted to challenge the trust" when he first met with Steichen in March 2001, and that he never said he wanted "to challenge my wife's claim against me," noting that he already had an attorney in the divorce and "did not need another one."

¶ 10. Hensler attached to his answer a copy of a billing from Steichen's firm containing an entry for March 28, 2001, for a telephone conference with Hensler's ex-wife's counsel "re: meeting re: cooperation in case against [the trust company]." Hensler also attached a copy of a letter from his ex-wife's counsel to her, dated March 30, 2001, saying that the attorney had "received several calls from Attorney Mark Steichen," the substance of which the letter describes as follows:

Mark indicates that he would be prepared to meet with me either Monday or Tuesday of next week to discuss coming on board against [the trust company], I have not set any meeting or discussed anything with him other than the possibility of a meeting .... I am also aware of the fact that [Hensler's divorce attorney] has told [the trust company's attorney] that [Hensler] now plans to turn on [the trust company]. The die is cast.... Having [Hensler] turn on [the trust company] could be immensely helpful and would likely enhance the chances for a good settlement or a good litigation result, if properly handled.

Hensler asserted in his answer that these attachments showed that "Attorney Steichen lied at arbitration. He knew about my intent against [the trust company]. His office had a conflict of interest, they dropped the ball. . . ."

¶ 11. Steichen moved for summary judgment. The parties' submissions on summary judgment are described below in our analysis. The circuit court denied Steichen's motion after concluding that Hensler had "raised enough here to at least let it go to trial on the question of fraud." The court subsequently denied Steichen's motion to reconsider its summary judgment ruling, again concluding that factual disputes on the question of fraud precluded summary judgment. Following trial, the court found that Steichen had procured the fee arbitration award through fraud. It entered judgment vacating the fee arbitration award and granting Hensler statutory costs. Steichen appeals.

ANALYSIS

¶ 12. Before considering whether the circuit court erred in vacating the fee arbitration award, we must determine the legal standards governing this dispute. The high degree of judicial deference to which an arbitration award is entitled when a party seeks to vacate it is well-established in Wisconsin. We recently described our deferential standard of review as follows:

We review the arbitrator's award de novo and decide independently whether the arbitrator's award should be confirmed in whole or in part, owing no deference to the circuit court's conclusions. Our review of an arbitration award is highly deferential; we may disturb the award only if we conclude the arbitrator committed one of a limited number of transgressions. "[T]he court will not overturn the arbitrator's decision for mere errors of law or fact, but only when 'perverse misconstruction or positive misconduct [is] plainly established, or if there is a manifest disregard of the law, or if the award itself is illegal or violates strong public policy.'"
Thus, we are not to substitute our judgment for that of the arbitrator, and we may vacate an award only if it violates the foregoing common law standards or those established by statute.

Winkelman v. Kraft Foods, Inc., 2005 WI App 25, ¶¶ 7-8, 279 Wis. 2d 335, 693 N.W.2d 756 (citations omitted).

¶ 13. Among other statutory grounds for vacating an arbitrator's award, a court "must make an order vacating the award . . . [w]here the award was procured by corruption, fraud or undue means." Wis. Stat. § 788.10(l)(a). Even where a statutory ground is alleged, however, the "arbitrator's award comes before us clothed with a presumption that it should be confirmed, and [Hensler] bears a heavy burden in attempting to convince us that. . . the amount[] the arbitrator awarded to [Steichen] should be set aside." Winkelman, 279 Wis. 2d 335, ¶ 9.

¶ 14. The parties agree that no Wisconsin precedent addresses the showing a party needs to make in order to succeed in having a court vacate an arbitration award on the grounds that it was procured by fraud. They also agree that, when construing Wis. Stat. § 788.10, we may look for guidance to precedents interpreting the Federal Arbitration Act. See Diversified Mgmt. Servs., Inc. v. Slotten, 119 Wis. 2d 441, 446, 351 N.W.2d 176 (Ct. App. 1984) ("Federal cases construing the federal act... are persuasive authority for our interpretation of sec. 788.10."). Finally, the parties further agree that the necessary elements of "procurement by fraud" for purposes of a challenge to an arbitration award have recently been well stated in International Brotherhood of Teamsters, Local 519 v. United Parcel Service, Inc., 335 F.3d 497 (6th Cir., 2003).

¶ 15. We thus turn to Teamsters Local 519, where the court described what the challenger of an arbitration award on the basis of procurement by fraud must establish:

Under federal law, courts may vacate an arbitration award that was procured by fraud. Courts should be hesitant to do so, however, "in order to protect the finality of arbitration decisions." To merit the vacation of the arbitration award, Local 519 must demonstrate (1) clear and convincing evidence of fraud, (2) that the fraud materially relates to an issue involved in the arbitration, and (3) that due diligence would not have prompted the discovery of the fraud during or prior to the arbitration.

Id. at 503 (citations and footnote omitted). Both parties also cite Karppinen v. Karl Kiefer Mach. Co., 187 F.2d 32, 34-35 (2d Cir. 1951), where the court gave the following guidance regarding a claim that perjured testimony before an arbitrator constituted procurement of an arbitration award by fraud: "[S]ince [perjury] necessarily raises issues of credibility which have already been before the arbitrators once, the party relying on it must first show that he could not have discovered it during the arbitration, else he should have invoked it as a defense at that time." Id. at 35.

¶ 16. We agree with the parties that the cited federal authorities provide a proper standard for determining whether Hensler met his burden to show Ste-ichen procured the fee arbitration award by fraud. We next consider whether, given the cited elements of procurement by fraud, the circuit court erred in permitting Hensler's claim to survive summary judgment. Put another way, our inquiry is whether, based on the record on summary judgment, Steichen was entitled to a judgment confirming the arbitration award, notwithstanding Hensler's claim that it was procured by fraud.

¶ 17. We review an order for summary judgment de novo, applying the same standards as the trial court. See Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991). Summary judgment is proper when the pleadings, answers, admissions and affidavits show no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Maynard v. Port Publications, Inc., 98 Wis. 2d 555, 558, 297 N.W.2d 500 (1980).

¶ 18. We first examine the parties' pleadings to see whether they sufficiently state a cognizable claim and a defense to that claim. Steichen's complaint sought confirmation of the fee arbitration award. He attached copies of Hensler's application for arbitration and the arbitrator's decision, both of which we have described above. We are satisfied that Steichen's complaint properly states a claim for confirmation of the fee arbitration award.

¶ 19. Hensler's answer raises the issue of procurement by fraud, and it essentially pleads a counterclaim for vacation of the award on that ground. The fraud Hensler alleges is that Steichen falsely "attested at fee arbitration that he first became aware on June 12, 2001 of a potential conflict he would have regarding his representation and potential claims I may have against" the trust company. Hensler attaches a billing statement from Steichen's firm showing charges for telephone conferences on March 16 and 19, 2001, that refer to "issues for dealing with" the trust company. There is also an entry for March 28 for a phone conference with Hensler's ex-wife's attorney regarding a "meeting re: cooperation in case against" the trust company. Hensler also attached the previously quoted excerpt from that attorney's letter of March 30, 2001.

¶ 20. We conclude that Hensler's answer pled a recognized ground for vacating an arbitration award under Wis. Stat. § 788.10(l)(a), procurement by fraud. Issue was thus joined, with Steichen being entitled to confirmation of the award unless Hensler could prove his sole defense — that the award was procured by fraud in the form of perjury by Steichen during the arbitration proceedings. See Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1297 (9th Cir. 1982) (noting that "[obtaining an award by perjured testimony constitutes fraud").

¶ 21. We thus turn to the parties' submissions on summary judgment. As we have noted, the record contains no transcript of testimony given by either of the parties at the arbitration hearing. Steichen submitted an affidavit in which he averred, among other things, that he had "testified under oath that Mr. Hensler had initially retained me to represent him to review his divorce judgment for potential modification or appeal and to defend claims brought by his former spouse . . . against him and the Hensler Family Trust." Steichen also averred that "Mr. Hensler also testified at the hearing and claimed that he had retained me at the outset only for the purpose of suing" the trust company. Steichen's affidavit identifies the following documents submitted with the affidavit: the arbitrator's decision and award; Hensler's application for fee arbitration; Steichen's response to the application, including attached copies of several letters Steichen wrote or copied to Hensler in June and July of 2001 (including the previously quoted letter of June 12, 2001) and Hensler's August response stating his refusal to pay the final bill. The affidavit also attaches a "new matter memo" from Steichen's firm dated March 13, 2001, which identifies Hensler's ex-wife as an "other party" and the trust company as an "interested non-party."

¶ 22. We are satisfied that Steichen's submissions in support of his summary judgment motion present a prima facie case for confirmation of the award. His affidavit and attachments show that the parties agreed to resolve their attorney fee dispute by arbitration and agreed to be bound by the arbitrator's award. The award itself establishes that the arbitrator conducted a hearing following which he awarded Steichen $1,727.75. We thus next examine Hensler's responsive submissions to see whether they establish, or at least place in dispute, each of the three elements Hensler was required to prove in order to establish that Steichen procured the arbitration award by fraud. See Moulas v. PBC Productions Inc., 213 Wis. 2d 406, 410-11, 570 N.W.2d 739 (Ct. App. 1997) (explaining that when a moving party establishes a prima facie case of entitlement to requested relief, "the opposing party — to avoid summary judgment — must set forth specific facts showing that there is a genuine issue of material fact for trial"). Specifically, "the opponent does not have the luxury of resting upon its mere allegation or denials of the pleadings, but must advance specific facts showing the presence of a genuine issue for trial." Id. at 411.

¶ 23. Hensler averred that he contacted Steichen in "early March 2001 ... to discuss filing a lawsuit against [the trust company] and/or its agents for misrepresentation," and further that "Atty. Steichen agreed to represent me in this regard." Hensler attached several invoices from Steichen's firm itemizing legal services and disbursements from March 2 through June 12, 2001; the June 12 letter from Steichen to Hensler; and the excerpt from Hensler's ex-wife's attorney's letter of March 30, 2001. Hensler also submitted an affidavit from that attorney in which the attorney averred that the "information I conveyed [in the excerpted paragraph] of the letter was based in part on conversations I had with Attorney Mark Steichen."

¶ 24. Nowhere, however, in Hensler's affidavit or its attachments does he aver or provide documentation regarding what Steichen testified at the arbitration hearing. In Hensler's circuit court brief opposing summary judgment, Hensler's attorney asserted that "Ste-ichen testified that he first discovered that Hensler wanted to pursue an action against [the trust company] on or about June 12, 2001." This assertion, however, like Hensler's similar assertion in his answer, are not sufficient to place a fact in dispute — an evidentiary submission is required. See Wis. Stat. § 802.08(3); Hopper v. City of Madison, 79 Wis. 2d 120, 130-31, 256 N.W.2d 139 (1977).

¶ 25. Hensler's counsel supported her assertion in the circuit brief with a citation to "Steichen Aff. ¶ 6, Ex. B." That paragraph of Steichen's affidavit, in its entirety, avers the following:

6. A copy of my response to the fee arbitration is attached hereto as Exhibit B. At a hearing on September 11, 2002, I testified under oath that Mr. Hensler had initially retained me to represent him to review his divorce judgment for potential modification or appeal and to defend claims brought by his former spouse ... against him and the Hensler Family Trust. Mr. Hensler also testified at the hearing and claimed that he had retained me at the outset only for the purpose of suing [the trust company].

Exhibit B is a copy of Steichen's response to Hensler's application for fee arbitration, which we have previously described and quoted. Steichen's response, which preceded the arbitration hearing by many months, sets forth his understanding of the scope of his representation of Hensler and his reason for terminating that representation. Nowhere in Steichen's affidavit or Exhibit B does Steichen say that he "testified that he first discovered that Hensler wanted to pursue an action against [the trust company] on or about June 12, 2001," as Hensler and his counsel have asserted.

¶ 26. In short, we cannot conclude from the record on summary judgment that Steichen testified falsely at the arbitration hearing, or that the record creates a material dispute regarding Steichen's testimony. Hensler submitted no evidence of what Steichen testified at the arbitration hearing, pointing to only Steichen's own averment that each party testified as to their respective views of the initial scope of Steichen's representation. Steichen's undisputed averment is that he testified he was first retained to review Hensler's divorce judgment and defend his ex-wife's claims against the trust. Steichen's testimony was thus consistent with the position he had laid out in his response to Hensler's application for arbitration, as well as with Steichen's explanation to Hensler in his letter of June 12, 2001. At most, Hensler's submissions on summary judgment show that, early on in his representation of Hensler, Steichen discussed with his client and other attorneys involved in the case the possibility of Hensler's joining with his ex-wife in a claim against the trust company. That fact neither shows nor places in dispute that Steichen testified falsely regarding the initial scope of his representation of Hensler.

¶ 27. Not only do Hensler's submissions opposing summary judgment fail to establish or place in dispute that Steichen committed fraud in the form of perjured testimony during the arbitration proceedings, the summary judgment record establishes that, even if Steichen testified "falsely" from Hensler's perspective, the substance of Steichen's position and his testimony was or should have been well known to Hensler prior to the arbitration hearing. Steichen's letter of June 12, 2001, and his response to Hensler's arbitration application plainly lay out Steichen's view of the initial scope of his representation, as well as his position that Hensler's desire to cooperate with his ex-wife in pursuing the trust company evolved during the three months that Steichen represented Hensler. We thus conclude Hen-sler has also failed to show or place in dispute that, with due diligence, he could not have discovered the alleged fraud during or prior to the arbitration. See Teamsters Local 519, 335 F.3d at 503.

¶ 28. Hensler makes much of the March 30, 2001 letter to his ex-wife from her then attorney containing the paragraph saying that the attorney had conferred with Steichen by phone about possibly meeting to discuss Hensler's "coming on board against" the trust company. Hensler averred that he came into possession of the letter only after the arbitration decision, when his daughter provided him a copy of it. Hensler argues that this "newly discovered evidence" was thus not available to him prior to or during the arbitration hearing. He apparently believes that (1) the letter proves, or at least raises a reasonable inference, that Steichen lied at the arbitration hearing about when he became aware of Hensler's desire to join forces with his ex-wife against the trust company, and (2) Hensler's lack of access to the letter prior to arbitration precluded him from exposing Steichen's "fraud." Neither contention is correct.

¶ 29. First, as we have noted, there is nothing in the record showing precisely what Steichen may have testified in this regard. Second, Steichen's billing statements to Hensler disclose that the topic of Hensler's possible "cooperation in [a] case against" the trust company came up at least as early as March 28th, and that discussions of that possibility continued through April and into May. The billing statements were available to Hensler before the arbitration and could have been used by him to support his claim before the arbitrator that he had retained Steichen from the beginning to sue the trust company.

¶ 30. Moreover, the statements also show that Steichen was performing legal work for Hensler involving his divorce and the defense against his ex-wife's action to dissolve the trust. These billing statements not only support Steichen's claim that he was engaged for matters beyond a suit against the trust company, but they also suggest that, if Hensler did not want Steichen working on matters other than suing the trust company, he could have objected to Steichen when first billed for this other work. Hensler made no objection, however, until two months after Steichen's letter of June 12, 2001, that informed Hensler of the potential conflict and the termination of Steichen's representation. The relevant point, however, is that, regardless of whether Hensler could have, with due diligence, obtained the letter of March 30, 2001, from his ex-wife's attorney, the letter contained no information that was not readily available to Hensler from the itemized bills he received from Steichen. The bills show that, from mid-March onward, Steichen participated in discussions regarding Hensler's joining his ex-wife in a claim against the trust company. The March 30 letter simply contains additional evidence of that fact.

¶ 31. In summary, in order for Hensler's claim that Steichen procured the fee arbitration award by fraud to survive summary judgment, Hensler needed to submit evidentiary materials tending to show (or place in dispute) that (1) a clearly demonstrable fraud was perpetrated; (2) the substance and nature of the fraud could not, with due diligence, have been discovered prior to or during arbitration; and (3) the fraud was material to an issue decided by the arbitrator. Hensler failed on summary judgment to establish or place in dispute the first two of these three requirements. The record on summary judgment contained no evidence that, if believed by a factfinder, would clearly establish Steichen perpetrated any type of fraud during the arbitration proceedings. In any event, the substance of the alleged fraud was plainly communicated by Ste-ichen to Hensler prior to the arbitration, such that Hensler had ample opportunity to discover the "fraud" and expose it before the arbitrator. We thus conclude Steichen is entitled to summary judgment confirming the arbitrator's award.

¶ 32. Because we conclude that Steichen was entitled to summary judgment, we have no need to review the trial record. Our analysis and the disposition of this appeal rests solely on the parties' submissions on summary judgment. However, we do not wish to leave the impression that the flaw in Hensler's challenge to the arbitration award stems solely from technical flaws or oversights in his response to Steichen's summary judgment motion. Our review of the trial record reveals that the testimony and exhibits presented at trial by both parties did not vary materially from their submissions on summary judgment. For the same reasons that Hensler's claim of procurement by fraud fails to survive Steichen's motion for summary judgment, Hensler failed to meet his evidentiary burden at trial. Were we deciding the appeal on the trial record instead of the record on summary judgment, our conclusions and disposition would be the same.

¶ 33. Our review of the trial record also shows why courts "should be hesitant" to set aside an arbitration award for alleged fraud. See Teamsters Local 519, 335 F.3d at 503. Although Hensler, as he was required to do, largely framed his arguments at trial in terms of Steichen's alleged fraud, the trial was, for all intents and purposes, a re-litigation of the issue addressed in arbitration — the disputed scope of Steichen's representation. Steichen agreed during cross-examination with Hensler's attorney's assertion that his testimony at trial was "essentially what you had testified to at arbitration." Hensler likewise acknowledged that, at arbitration, his "position was the same as [I am] saying now." In opposing Steichen's motion for a directed verdict, Hensler's ■ counsel argued that "it's a question of fact over who the jury wants to essentially believe and who is going to be more credible." Similarly, in her closing argument, Hensler's counsel asked jurors to believe her client's testimony instead of Steichen's.

¶ 34. In short, the trial record reveals that Hensler's claim of procurement by fraud is, at bottom, little more than a complaint that the arbitrator believed the wrong party. Hensler sought in this action to have a judge or jury make different credibility determinations than the arbitrator did. As we have noted, however, the standards governing judicial review of arbitration awards do not permit de novo judicial determinations of arbitrated disputes to supplant arbitration outcomes. We acknowledge that the trial of a claim that an arbitration award was procured by fraud will often necessarily involve some duplication of the evidence presented to the arbitrator. However, a challenger must also present clear and convincing evidence of the alleged fraud, as well as evidence showing that the alleged fraud could not, with due diligence, have been discovered prior to or during arbitration. Hensler presented no such evidence, and the trial in this case consisted of little more than a replay of the arbitrated dispute.

¶ 35. We close by addressing Steichen's argument that Hensler or his present counsel, or both, "ought to pay all expenses of this proceeding" because Hensler's objection to confirmation of the fee arbitration award had no basis in law or fact and was therefore frivolous under Wis. Stat. § 814.025. Steichen posits that the integrity and future utilization of the State Bar of Wisconsin's fee arbitration program, and other arbitration mechanisms, will be undermined unless we direct the imposition of sanctions against Hensler or his present counsel. He contends that if "every participant can obtain de novo review of the merits in circuit court simply by asserting that the winning party lied and the losing party told the truth at arbitration, then there will be no point in agreeing to arbitration. Rather than reducing the cost and delay of dispute resolution, it would increase them."

¶ 36. As we have discussed, we agree with Steichen's characterization that the instant litigation was, at bottom, a re-litigation of the arbitrated dispute. We have also had little difficulty in concluding that the award should have been confirmed on summary judgment. We can discern no basis or authority, however, for us to direct the imposition of frivolousness sanctions on Hensler or his present counsel under Wis. Stat. § 814.025, even if we were inclined to do so. The statute requires that a request for frivolousness sanctions be directed to the circuit court prior to the entry of judgment. See Northwest Wholesale Lumber, Inc. v. Anderson, 191 Wis. 2d 278, 286, 528 N.W.2d 502 (Ct. App. 1995). Steichen requested frivolousness sanctions in his post-trial motion to confirm the arbitration award. The circuit court, however, had no cause to address the request after it determined that Hensler prevailed in establishing procurement by fraud.

¶ 37. Wisconsin Stat. § 814.025, however, vests discretion in the circuit court, not this court, to impose frivolousness sanctions, the exercise of which we may review but not usurp. See Lindevig v. Dairy Equip. Co., 150 Wis. 2d 731, 743, 442 N.W.2d 504 (Ct. App. 1989). Neither may we impose sanctions under Wis. Stat. § 814.025 for positions taken on appeal. See Swartwout v. Bilsie, 100 Wis. 2d 342, 357, 302 N.W.2d 508 (Ct. App. 1981). Finally, our authority under the appellate rules to sanction frivolousness before this court extends to only "an appeal or cross-appeal... found to be frivolous," and not to an allegedly frivolous responsive position in support of a circuit court judgment or order. See Wis. Stat. Rule 809.25(3).

¶ 38. Accordingly, we deny Steichen's request that we remand for a determination of sanctions to be imposed on Hensler or his present counsel. Steichen acknowledges that the appropriate standards for adjudicating a party's claim under Wis. Stat. § 788.10(l)(a) that an arbitration award was procured by fraud is a question of first impression in Wisconsin. Now that the question has been addressed, the adverse consequences cited by Steichen in support of his request for sanctions need not come to pass.

CONCLUSION

¶ 39. For the reasons discussed above, we reverse the appealed judgment and remand to the circuit court for entry of a judgment confirming the fee arbitration award of $1,727.75.

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

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

       The case was actually tried to a jury on Hensler's demand, and the jury answered "yes" to the following verdict question: "Did Mark J. Steichen procure the arbitration award through fraud?" While addressing Steichen's post-trial motions, the circuit court concluded that a jury trial may not have been proper in an action to confirm or vacate an arbitration award. The court noted, however, that it had presided at trial, heard the testimony and reviewed the exhibits. It then adopted "the finding of fact that the jury made," stating that the court agreed with the verdict and would have reached the same conclusion had the issue of fraudulent procurement been tried to the court. Steichen does not argue that the appealed judgment must be set aside because Hensler's fraud claim was tried before a jury. We therefore do not address the issue.

       Steichen's testimony was also consistent with what Hensler himself said in his arbitration application, where he identified "divorce" as the type of case for which he retained Steichen and stated that he had "retained Atty. Steichen as co-counsel... for my divorce."

       For example, there are billing entries in March 2001, for "telephone conference Mr. Hensler re: multiple issues arising out of divorce"; preparation for a March 14 hearing on the ex-wife's trust claim and the scheduling of depositions regarding that claim; a telephone conference regarding, in part, "property division issues"; and an office conference between Steichen and two associates "re: circumstances of divorce trial and options for reconsideration." April, May and June billing entries, in addition to indicating continued discussions among Steichen, Hen-sler and other attorneys involved in the case of "claims against" the trust company and "proposals to... jointly pursue" that company, also show that Steichen acted to have the divorce trust claim proceedings stayed, reviewed an order accomplishing that end and drafted an agreement between Hensler and his ex-wife for "cooperation to pursue" the trust company.

       Steichen's letter of June 12, 2001, informs Hensler of the stipulated stay and potential dismissal of proceedings in the divorce trust claim litigation, of the anticipated next steps in investigating a joint claim against the trust company, and of the fact that Steichen had drafted a proposed cooperation agreement for Hensler and bás ex-wife to consider. Steichen clearly communicates his view in this letter that, at the time Hensler retained him, Hensler was "on the same side as [the trust company] and the goal was to defend you and the trust against" Hensler's ex-wife's claims. Hensler returned an annotated copy of the June 12 letter to Steichen in August, indicating his disagreement with several statements in it. The exchange serves as another indication that Hensler was well aware prior to arbitration of Steichen's position regarding the scope of his representation and his reason for terminating that representation when he did.

       Given our conclusion that Hensler failed to make a sufficient showing on two of the required elements of procurement by fraud, we do not address the third, whether the alleged fraud materially related to an issue decided in the arbitration.

       We note that Wis. Stat. § 814.025 has been repealed by supreme court order effective July 1,2005. Provisions regarding frivolous actions are now to be found in Wis. Stat. § 802.05, as amended effective July 1, 2005. See Wisconsin Supreme Court Order No. 03-06, 2005 WI 38 (Mar. 31, 2005).