author: SNYDER, J.

text:
    Affordable Erecting, Inc., Plaintiff-Appellant, v. Neosho Trompler, Inc., Defendant-Respondent.
    Court of Appeals

      No. 2004AP2746.

      Submitted on briefs May 25, 2005.

      Decided July 6, 2005.

    2005 WI App 189
    (Also reported in 703 N.W.2d 737.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert N. Meyeroff, Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Steven P. Bogart and Bridget M. Hubing of Reinhart, Boerner, Van Deuren, S.C., Milwaukee.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review granted 9-8-05.

   SNYDER, J.

¶ 1. Affordable Erecting, Inc. appeals from an order enforcing a mediated settlement agreement between the parties and their insurers and dismissing Affordable's contract claim against Neosho Trompler, Inc. Affordable argues that the circuit erred when it determined that the contract claim was settled pursuant to a mediated agreement and also in holding that Affordable is equitably estopped from bringing its claim. Because we agree that Affordable is estopped from bringing its claim, we affirm the order of the circuit court.

FACTS

¶ 2. The parties originally entered into a contract whereby Affordable would relocate Neosho's equipment from Hustisford, Wisconsin to Hartland, Wisconsin. Affordable moved the equipment and demanded payment. On October 11,2001, Affordable filed a complaint in Washington County Circuit Court alleging breach of contract by Neosho and claiming approximately $17,900 in damages. Neosho answered and counterclaimed, alleging breach of contract and common carrier liability. Neosho alleged that its lathe was damaged during the move and it is not obligated to pay Affordable under the contract. Affordable brought in its insurer, Acuity, to defend against Neosho's counterclaims. General Casualty Company of Wisconsin, Neosho's insurer, intervened soon thereafter. The circuit court ordered mediation.

¶ 3. On May 21, 2003, the parties and their insurers participated in mediation. The resulting mediated agreement provided that Acuity would pay $12,500, inclusive of all costs, disbursements, attorney fees and damages, to be disbursed as follows: $3500 to Affordable, $5000 to Neosho, and $4000 to General Casualty. All agreed not to bring any future claim or lawsuit against another for any alleged reason arising out of the same facts and issues that arose in Washington County Circuit Court Case No. 2001CV728. The parties and their insurers released one another from any associated liability and agreed that the settlement was final and binding.

¶ 4. Attorneys for Acuity, Affordable, and Neosho signed the mediated agreement. The owner of Neosho also signed. Affordable's attorney added a notation below the signatures that stated, "Settlement contingent on approval from Tracy Haferkorn [owner of Affordable] by May 22, 2003 at 12:00 p.m."

¶ 5. Acuity prepared a formal settlement document and a stipulation and order for dismissal. On June 4, 2003, Acuity sent the documents to the other parties for signatures, and attached the settlement checks accordingly. Neosho and General Casualty signed the documents and cashed the settlement checks. Affordable never signed the formalized settlement document or the stipulation and order for dismissal and it returned the settlement check to Acuity without cashing it.

¶ 6. On July 24, the circuit court sent out an order for dismissal without prejudice on grounds that the matter had not been diligently prosecuted. On July 29, General Casualty sent a letter to the other parties requesting that execution of the formalized settlement agreement be completed. On August 18, Neosho followed up with a letter making the same request. Nonetheless, Affordable never signed the document.

¶ 7. On March 2, 2004, Affordable filed a complaint in Waukesha County Circuit Court, alleging the same facts and making the same claim against Neosho as it did in the original Washington county case. Neosho answered and counterclaimed for breach of the settlement agreement, declaratory judgment, breach of the original contract, and common carrier liability. By stipulation the venue was changed from Waukesha county to Washington county. Neosho subsequently filed a motion to enforce the settlement agreement and to dismiss Affordable's claim with prejudice.

¶ 8. Upon briefs and affidavits submitted by the parties, the circuit court held that Affordable and Neosho had entered into a valid and enforceable settlement agreement and that Affordable was estopped from reasserting the contract claim against Neosho. The court dismissed the case with prejudice. Affordable appeals.

DISCUSSION

Standard of Review

¶ 9. The parties disagree as to the proper standard of review. Generally, a circuit court's decision to dismiss an action is discretionary and will not be disturbed on appeal unless the court erroneously exercised its discretion. Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273, 470 N.W.2d 859 (1991). While Neosho's motion was for dismissal, a motion confined to the pleadings, the circuit court also reviewed affidavits of the parties relating to the claims. Pursuant to Wis. Stat. § 802.06(3) (2003-04), when "on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . ." Our review of summary judgment is de novo. State Farm Mut. Auto. Ins. Co. v. Gillette, 2001 WI App 123, ¶ 11, 246 Wis. 2d 561, 630 N.W2d 527, aff'd, 2002 WI 31, 251 Wis. 2d 561, 641 N.W.2d 662.

¶ 10. Furthermore, the circuit court ordered dismissal on two alternative grounds. First, the court determined that the mediated agreement complied with Wis. Stat. § 807.05. We will not disturb a circuit court's underlying findings of fact unless clearly erroneous; however, whether the facts fulfill a statutory requirement is a question of law that we review de novo. Povolny v. Totzke, 2003 WI App 184, ¶ 6, 266 Wis. 2d 852, 668 N.W.2d 834. Second, the court determined that dismissal was appropriate because Affordable is es-topped from pursuing its claim against Neosho. Where the circuit court's findings of fact are not clearly erroneous, it is a question of law whether estoppel has been established. See Milas v. Labor Ass'n of Wis., Inc., 214 Wis. 2d 1, 8, 571 N.W.2d 656 (1997). Once the elements of equitable estoppel have been established as a matter of law, the decision to actually apply the doctrine to provide relief is a matter of discretion. Nugent v. Slaght, 2001 WI App 282, ¶ 30, 249 Wis. 2d 220, 638 N.W.2d 594.

Settlement Agreements Under Wis. Stat. § 807.05

¶ 11. Affordable first argues that the circuit court erred when it concluded that a settlement agreement existed and complied with Wis. Stat. § 807.05. Specifically, Affordable asserts that a case is not settled unless the agreement is made in court on the record or is made in writing and signed by the parties or the parties' attorneys. The statute provides:

No agreement, stipulation, or consent between the parties or their attorneys, in respect to the proceedings in an action or special proceeding shall be binding unless made in court or during a proceeding conducted under s. 807.13 or 967.08 and entered in the minutes or recorded by the reporter, or made in writing and subscribed by the party to be bound thereby or the party's attorney.

Id. Here, the agreement was not made in court or placed on the record. Although memorialized in writing, Affordable's attorney signed the mediated agreement with the express contingency that it required additional consent by Affordable's owner.

¶ 12. Neosho responds that Affordable's attorney signed the mediated agreement and "assured the parties that [Affordable] would approve the settlement and did not inform any other party of the contrary until months after all of the other parties performed all of their obligations .. . and even after [Affordable] chose not to object to [dismissal] for failure of prosecution." In its written decision, the circuit court agreed, noting that a party's attorney has authority to sign an agreement on the party's behalf and that Affordable's attorney assured the other parties that Affordable would approve the settlement. Further, the court referenced Affordable's failure to inform the other parties that it did not approve the settlement and its failure to act when advised by the court that the lawsuit would be dismissed for failure to diligently prosecute.

¶ 13. Nonetheless, we agree with Affordable that the mediated agreement does not comport with the requirements of Wis. Stat. § 807.05. The verbal assurances of Affordable's attorney do not satisfy the statutory requirement that an agreement be "subscribed" by a party or the party's counsel. We have previously considered whether the term "subscribe" in the statute should be given an expansive meaning.

¶ 14. We have rejected the contention that oral assurances satisfy the statutory requirements and concluded that Wis. Stat. § 807.05 is an exception to the general rule that oral agreements are binding. Adelmeyer v. Wisconsin Elec. Power Co., 135 Wis. 2d 367, 372, 400 N.W.2d 473 (Ct. App. 1986). With § 807.05, our legislature added requirements for enforceability of an otherwise valid agreement when that agreement is reached while the claim is in the process of adjudication. Kocinski v. Home Ins. Co., 154 Wis. 2d 56, 67, 452 N.W.2d 360 (1990).

¶ 15. We have also rejected the argument that a party may subscribe to an agreement by his or her conduct alone. Laska v. Laska, 2002 WI App 132, ¶ 11, 255 Wis. 2d 823, 646 N.W.2d 393. We concluded that "the plain meaning of the term 'subscribe' requires that a party's assent or approval be formalized in some way on the document itself." Id., ¶ 12.

¶ 16. Because Wis. Stat. § 807.05 does not provide for a party to subscribe to an agreement through verbal assurances or general conduct, the mediated agreement between Affordable, Neosho, and the insurers is deficient. See Laska, 255 Wis. 2d 823, ¶ 14; Adelmeyer, 135 Wis. 2d at 372. Consequently, the circuit court's determination that Affordable's attorney's verbal assurances along with Affordable's failure to diligently prosecute its claim complied with § 807.05 reflects an erroneous view of the law.

Estoppel

¶ 17. The doctrine of estoppel, also called equitable estoppel, focuses on the conduct of the parties. Milas, 214 Wis. 2d at 11. The elements of equitable estoppel are: (1) action or nonaction, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or nonaction, and (4) which is to his or her detriment. Id. at 11-12. The party asserting estoppel must prove the elements by clear, satisfactory and convincing evidence. Id. at 12 n.14.

¶ 18. All of the elements required to invoke estop-pel are present in this case. Affordable concedes the first two elements of estoppel, stating that "Affordable did not attend the mediation hearing and after the mediation hearing Affordable was not decisive in assuring all parties that the case was not settled." However, it disputes that Neosho reasonably relied on the mediated agreement because the contingent approval by Affordable was not forthcoming. Affordable contends that "Neosho knew or should have known two days after the mediation agreement was signed that Affordable would not agree to the settlement." We disagree.

¶ 19. Here, the circuit court determined that Neosho, General Casualty, and Affordable's insurer, Acuity, acted in reasonable reliance on the mediated agreement. Specifically, the court found that following mediation, Acuity "immediately circulated a draft version of the more formal Mutual Release and Settlement Agreement" and two weeks later sent the "stipulation and order for dismissal along with settlement payments to all parties." Furthermore, Acuity "acknowledged in its letter 'the above captioned matter has settled.'" Neosho and General Casualty signed the formalized settlement agreement and cashed their settlement checks. The court also observed that "[e]ven after the case was dismissed, [Affordable] sat back and did nothing for eight months, until March 2004 when it re-filed the exact same complaint, word for word, in Waukesha County." Based on the record, we conclude that Neosho had no reason to doubt that the settlement was final and binding.

¶ 20. Finally, equitable estoppel requires that "the party against whom estoppel is asserted caused another party to change position to his or her detriment." Id. at 13. Our supreme court has stated that "[i]n the context of. .. equitable estoppel, 'detriment' has been equated with 'prejudice,' and [has been] commonly understood to mean 'injury or damage.'" Id. (citation omitted).

¶ 21. In Milas, a discharged deputy sheriff proceeded to arbitration with the County. Id. at 12. The County fully participated in the arbitration. Id. One year after commencement of the arbitration proceeding and three months after announcement of the arbitration award, the County objected to the arbitrator's jurisdiction. Id. There, our supreme court determined that the deputy sheriff invested time and resources in an arbitration proceeding when, had he known of the County's objection, he may have sought review in circuit court. Id. at 13.

¶ 22. Similarly, Neosho asserts that it invested time and resources in the original mediation process and is now required to defend the same claim a second time. Had Neosho known that Affordable would reject the mediated agreement and pursue its claim in court almost three years after the original action was filed, it may have chosen to defend the action and litigate its counterclaim in court or it may have pursued other dispute resolution options. Because of Affordable's non-action and Neosho's reasonable reliance thereon, Neosho chose to sign the agreement, cash the settlement check, and forego legal alternatives.

¶ 23. Where the circuit court's findings of fact are not clearly erroneous, it is a question of law whether estoppel has been established. See id. at 8. Here, the record supports the findings of the circuit court and we hold that Neosho has demonstrated all of the elements of equitable estoppel.

Appropriateness of Summary Judgment

¶ 24. Finally, Affordable argues that summary judgment was inappropriate because facts are in dispute. Summary judgment is available where no material facts are in dispute and one party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). When we review a circuit court's grant of summary judgment, we view the facts in the light most favorable to the nonmoving party. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 512, 383 N.W.2d 916 (Ct. App. 1986).

¶ 25. Affordable primarily argues that whether or not a settlement agreement existed is a question of fact to be decided at trial. This mischaracterizes the inquiry. The material facts underlying the disputed settlement agreement are that Affordable's attorney included a contingency on the mediated agreement that was never met, and that Affordable never signed the formalized settlement document. Given these undisputed facts, only a question of law remains: whether the mediated agreement conformed to the requirements for an agreement under Wis. Stat. § 807.05. See Povolny, 266 Wis. 2d 852, ¶ 6. Pursuant to our earlier analysis, we hold that it did not.

CONCLUSION

¶ 26. We conclude that the mediated agreement between Affordable, Neosho, and the insurers is not binding under Wis. Stat. § 807.05 because a party's assent or approval must be formalized in some way on the document itself, rather than by verbal assurances or general conduct. See Laska, 255 Wis. 2d 823, ¶ 12; Adelmeyer, 135 Wis. 2d at 372. Nonetheless, we conclude that Affordable is estopped from reasserting the breach of contract claim. Dismissal of Affordable's action was therefore appropriate and we affirm the order of the circuit court.

By the Court. — Order affirmed.

       Washington County Circuit Court Case No. 2001CV728.

       General Casualty had paid $10,000 to Neosho for damages that were the subject of its counterclaim against Affordable.

       References to the "mediated agreement," "settlement agreement" or "settlement" are used throughout this opinion. Any reference to the "mediated agreement" specifically addresses the form that was produced at the conclusion of the mediation session and contains the handwritten contingency regarding Tracy Haferkorn's approval.

       We observe that Affordable's appellate brief is devoid of pinpoint citations for the case law it invokes to support its legal contentions. Wisconsin Stat. Rule 809.19 (2003-04) requires the appellant to support its contentions with citations conforming to the Uniform System of Citation and Supreme Court Rule 80.02. A citation to a specific legal principle from case law shall include a reference to the page number, or paragraph number if a public domain citation is available, where the legal principle may be found. SCR 80.02(3).

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


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    David Zastrow, the Employee Stockholders of Perry Printing, Larry J. Gocker, Neal C. Kopplin, Catherine Thompson and Eunice Weihert, Plaintiffs-Appellants-Cross-Respondents, v. Journal Communications, Inc., Journal Employees Stock Trust (JESTA), and Trustees of Journal Employees Stock, Defendants-Respondents-Cross-Appellants, Perry Printing Division n/k/a Northstar Printgroup, Inc., Paul M. Bonaiuto, Keith M. Spore, Executive Risk Indemnity, Inc., Robert A. Kahlor, Steven J. Smith, Thomas M. Karavakis, Peter P. Jarzembinski and Douglas G. Kiel, Defendants-Respondents.
    Court of Appeals

      No. 2004AP276.

      Submitted on briefs May 23, 2005.

      Decided July 8, 2005.

    2005 WI App 178
    (Also reported in 703 N.W.2d 673.)

      On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the brief of Thomas L. Frenn, Petrie & Stocking S.C., Milwaukee, and Kevin J. Demet and Donal M. Demet, Demet & Demet, SC, Milwaukee.
    On behalf of the defendants-respondents-cross-appellants, the cause was submitted on the brief of Thomas J. Shriner, Jr. and David W. Simon, Foley & Lardner LLP, Milwaukee.
    Before Dykman, Vergeront and Higginbotham, JJ.

       Petition to review granted 10-14-05.

   VERGERONT, J.

¶ 1. This action involves a trust agreement under which employees of Journal Communications, Inc., and its subsidiaries can acquire units of beneficial interest in the stock of Journal Communications. After a trial to the court, the court found that the trustees had negligently failed to fulfill their fiduciary duty to disclose to a certain group of former employees the availability of a longer period for selling back their units if they chose to retire when the subsidiary that employed them was sold. The court entered judgment in favor of four of those employees in an amount totaling $130,479.52 plus their attorney fees. Journal Communications, Journal Employees Stock Trust, and the trustees appeal that judgment on a number of grounds. The dispositive issue is whether the circuit court correctly decided that the six-year statute of limitations in either Wis. Stat. §§ 893.52 or 893.53 applies to the breach of fiduciary duty claims.

¶ 2. We conclude that under Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298, the two-year statute of limitations in Wis. Stat. § 893.57 applies to the breach of fiduciary duty claims. The employees do not argue that their breach of fiduciary duty claims are not barred if § 893.57 applies. Accordingly, we reverse the judgment of the circuit court and remand with directions to dismiss the complaint.

BACKGROUND

¶ 3. The trust was created in 1937 and, at all times relevant to this appeal, it owned 90% of Journal Communications' stock, with the remainder owned by one of the grantors or his heirs. The trust agreement provided that employees of Journal Communications and its subsidiaries could under certain circumstances purchase units of Journal Communications' stock at an "option price," which was established by formula. The agreement also provided that unit-owning employees whose employment with a Journal Communications company terminated for any reason other than retirement were required to immediately offer for sale all units at the then-current option price. If the reason for termination was retirement, however, the employee was permitted under the agreement to offer his or her units for sale over a period of ten years.

¶ 4. In 1995, the assets of one of Journal Communications' subsidiaries, Perry Printing Company (Perry), were sold. The sale agreement required the buyer to continue to operate the business and to offer similar positions with comparable compensation and benefits to all existing Perry employees. The position of the trustees was that the Perry employees were not leaving the employ of a Journal Communications' company by reason of retirement and, therefore, under the terms of the trust agreement all Perry unit-owning employees would have to immediately offer their units for sale. However, the trustees decided to allow Perry employees and others leaving a Journal Communications' company because of corporate restructuring to offer their units for sale for a period of up to five years, depending on how long they had owned units.

¶ 5. This action was filed in April 2000 as a class action on behalf of all former Perry employees who had been employed on the date of the sale and who had sold their units. As relevant to this appeal, the amended complaint alleged that the plaintiffs were entitled under the trust agreement to be treated as retirees with the right to sell their units over a ten-year period, but they were denied this right. They were damaged as a result, the amended complaint alleged, because the earlier sales deprived them of the benefit of later price increases. The amended complaint asserted claims of breach of fiduciary duty, breach of employment contract, and a violation of Wis. Stat. ch. 109 (wage claims) against Journal Communications, the trustees, and the trust (collectively, the defendants).

¶ 6. In a series of decisions on motions to dismiss, motions for summary judgment, and motions for reconsideration, the circuit court dismissed the breach of contract and wage claims and concluded the breach of fiduciary duty claim could proceed to trial with one subclass of plaintiffs and on only one theory. The subclass consisted of those eligible to retire at the time Perry was sold. Because of the court's conclusion that the procedure for Perry employees to exercise a decision to retire was unclear, the court decided that it would consider a member of the subclass to be retired within the meaning of the trust agreement if that person could show he or she intended to retire when Perry was sold. The single theory that remained, the court ruled, was that the trustees breached their fiduciary duties of loyalty and impartiality by requiring those employees to sell their units within five years instead of ten.

¶ 7. The defendants moved for dismissal of this remaining claim for breach of fiduciary duty on the ground that it was barred by the two-year statute of limitations in Wis. Stat. § 893.57:

Intentional torts. An action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person shall be commenced within 2 years after the cause of action accrues or be barred.

The plaintiffs responded that the six-year statutes of limitations in Wis. Stat. §§ 893.52 or 893.43 applied. These statutes provide:

893.52 Action for damages for injury to property. An action, not arising on contract, to recover damages for an injury to real or personal property shall be commenced within 6 years after the cause of action accrues or be barred, except in the case where a different period is expressly prescribed.
893.43 Action on contract. An action upon any contract, obligation or liability, express or implied, including an action to recover fees for professional services, except those mentioned in s. 893.40, shall be commenced within 6 years after the cause of action accrues or be barred.

¶ 8. In its written decision, the circuit court considered Warmka v. Hartland Cicero Mutual Insurance Co., 136 Wis. 2d 31, 34-35, 400 N.W.2d 923 (1987), on which the defendants primarily relied. There the supreme court held that the two-year statute of limitations in Wis. Stat. § 893.57 applied to an insured's claim against his insurer for bad faith because, the supreme court stated, the insurer's duty is analogous to a fiduciary duty and the breach of a fiduciary duty is an intentional tort. Warmka, 136 Wis. 2d at 35-36. The circuit court here reasoned that there was a distinction between claims of breach of fiduciary duty that are based on negligent conduct, such as a failure to act, and claims that are based on conduct that is in bad faith, is deceitful, or with knowledge of the lack of a reasonable basis for the conduct or a reckless disregard of a reasonable basis. For the former category, the circuit court concluded, the two-year statute of limitations for intentional torts did not apply and the six-year statute of limitations in either Wis. Stat. §§ 893.52 or 893.53 did apply. Because the breach of fiduciary duty claim that remained for trial involved a failure to reasonably interpret the agreement or a failure to treat the subclass impartially as compared to other retirement eligible employees, the court concluded that a six-year statute of limitations applied to the claim. Applying a six-year statute of limitations, the court concluded the claim was timely filed.

¶ 9. The breach of fiduciary duty claims of sixteen subclass members went to trial before the court. In its written decision, the court found that, in order to have the right to a ten-year sell-back under the trust agreement, the subclass members would have had to first retire from Perry and then apply for employment with the new company; they could not both retire and have immediate employment with the new company. However, the court concluded, they could have retired from Perry the day before the sale, obtained the ten-year sell-back right, and then applied for employment with the new company the next day. The court concluded that the trustees had a conflict of interest with respect to the subclass members' choice of either retirement or immediate employment with the new company: the trustees, as employees of Journal Communications, had the right to purchase some of the units sold back by the subclass after Perry was sold, and the trustees were executives of Journal Communications, which had contracted with the new company for immediate employment of all Perry employees. That conflict of interest, the court concluded, imposed on the trustees a duty to disclose the availability of the ten-year sell-back period as an advantage to choosing retirement over immediate employment with the new company. The court determined that the trustees negligently failed to fulfill this duty. The court reaffirmed its earlier ruling that the six-year statute of limitations in either Wis. Stat. §§ 893.52 or 893.53 applied to the claim because it was a negligent rather than intentional breach of their fiduciary duty. The court also determined that the trustees did not breach their duty of loyalty and impartiality to the subclass members.

¶ 10. The circuit court determined that only three of the sixteen subclass members did not know about the ten-year sell-back and would have retired from Perry before the sale and then applied for employment with the new company had they known. The court awarded damages of $91,729, $33,367, and $4158 damages to each of the three, respectively, and, by stipulation, $1225.52 was awarded to a fourth subclass member.

¶ 11. The court concluded that Journal Communications was liable for these damages, as well as either the trustees or the trust. The court also awarded attorney fees, concluding it had the authority to do so under its equitable powers and under Wis. Stat. § 879.37, which addresses attorney fees in probate cases and which, the court decided, applied in matters involving a trust by virtue of Wis. Stat. § 701.14(1).

ANALYSIS

¶ 12. On appeal the defendants assert that the court erred in applying a six-year statute of limitations to the breach of fiduciary duty claims rather than the two-year statute of limitations in Wis. Stat. § 898.57. The Perry employees respond, as they did in the circuit court, that the six-year statute of limitations in either Wis. Stat. §§ 893.52 or 893.43 is the correct one. The issue of the correct statute of limitations presents a question of law, which we review de novo. Estate of Hegarty v. Beauchaine, 2001 WI App 300, ¶ 14, 249 Wis. 2d 142, 638 N.W.2d 355.

¶ 13. Since the circuit court issued its decision in this case, the supreme court decided Beloit Liquidating, 270 Wis. 2d 356, in which it applied Wis. Stat. § 893.57 to a claim for breach of fiduciary duty. In Beloit Liquidating, the plaintiff alleged that the officers and directors of Beloit Corporation breached their fiduciary duties to the corporation and its creditors because, during the time the corporation was insolvent or near insolvency, the officers and directors "negligently allowed the corporation to enter into money-losing contracts, failed to keep adequate accounting systems to deal with the losses, continued operations after prudent managers would have shut the corporation down, and failed to disclose the corporation's losses." Beloit Liquidating, 270 Wis. 2d 356, ¶ 10. The court first decided that Wisconsin law applied and that under Wisconsin law the officers and directors did not have a fiduciary duty to creditors unless the corporation was both insolvent and no longer a going concern. Id., ¶¶ 32-34. The court then stated:

Here, we hold that Beloit Corporation was a going concern during the relevant time period. We conclude that the two-year statute of limitations set forth in Wis. Stat. § 893.57 is applicable, because a breach of fiduciary duty claim involves an intentional tort. Thus, the applicable window of time is from June 7,1997 through June 7, 1999, the date that Beloit Corporation filed for bankruptcy protection. In the complaint, the only significant occurrence alleged during this time frame was the disclosure of Beloit Corporation's losses from the Asia Pulp contracts in March 1998. However, Beloit Corporation was still a going concern at this time; thus, any claim asserted by Beloit Corporation's creditors for breach of fiduciary duty during this time frame is not actionable, and any claim on behalf of Beloit Corporation resulted in no injury to the corporation.

Id., ¶ 40.

¶ 14. The defendants argue that, if there were any doubt prior to Beloit Liquidating that breach of a fiduciary duty is an intentional tort subject to the two-year statute of limitations in Wis. Stat. § 893.57, Beloit Liquidating has resolved the issue and is controlling. They also point out that in Beloit Liquidating the supreme court described the breach of fiduciary duty claim as an intentional tort even though the conduct alleged in that case was negligently allowing certain contracts and failing to keep adequate accounts, act prudently and disclose losses, rather than the type of bad faith conduct or intentionally wrongful conduct the circuit court here considered essential to the application of § 893.57.

¶ 15. The Perry employees do not discuss the supreme court's decision in Beloit Liquidating, but instead cite to this court's decision, Beloit Liquidating Trust v. Grade, 2003 WI App 176, ¶ 9, 266 Wis. 2d 388, 669 N.W.2d 232. Specifically, the Perry employees point to our statement that there was a dispute over the proper statute of limitations but we did not need to resolve it because some of the conduct occurred within the two years; on that basis we reversed the circuit court's dismissal, which had been based on the conclusion that none of the alleged conduct occurred within the two-year period. Id. However, the supreme court did decide that the two-year statute of limitations applied and that the circuit court therefore correctly dismissed the action. Beloit Liquidating, 270 Wis. 2d 356, ¶ 40. That is the ruling on the issue that is precedent.

¶ 16. The Perry employees attempt to distinguish the facts in Beloit Liquidating — still not citing to the supreme court's decision — in two ways. First, they contend that no unintentional acts were alleged there. However, as we have already noted, the conduct alleged there was negligently allowing certain contracts and failing to keep adequate accounts, act prudently, and disclose losses. We do not see how that conduct is any more "intentional" than the conduct that forms the basis for the claim that was adjudicated here — failure to disclose the advantages of retiring rather than immediate employment with the new company.

¶ 17. Second, the Perry employees point out that Beloit Liquidating did not involve a trust agreement. They cite a number of cases that, they contend, stand for the proposition that a six-year statute of limitations applies when the claim is against a fiduciary who is acting as a trustee of an express trust agreement. However, none of the cases they cite hold that a six-year statute of limitations applies to a claim of breach of fiduciary duty against such a trustee. Most of the cases they cite apply the six-year statute of limitations in Wis. Stat. § 893.43 or its predecessor to a claim for breach of contract. However, the circuit court here dismissed the breach of contract claim and we are concerned only with the proper statute of limitations for the breach of fiduciary duty claim that was adjudicated.

¶ 18. Two additional cases involving trusts on which the Perry employees rely require discussion: Hammes v. First National Bank & Trust Co. of Racine, 79 Wis. 2d 355, 255 N.W.2d 555 (1977), and Hatleberg v. Norwest Bank Wisconsin, 2004 WI App 48, 271 Wis. 2d 225, 678 N.W.2d 302, aff'd on other grounds, Hatleberg v. Norwest Bank Wisconsin, 2005 WI 109, 283 Wis.2d 234, 700 N.W.2d 15. In Hammes, the beneficiaries of a testamentary trust alleged claims of negligence and breach of fiduciary duty against the trustees for advising them to sell their ownership in certain stock, held in the trust, at a price that personally benefited one of the trustees. Hammes, 79 Wis. 2d at 357-58, 361. The issue before the supreme court was whether the action was barred under the doctrine of res judicata (claim preclusion) by prior probate court orders discharging the trustee and approving the sale of the stock. Id. at 359. The supreme court concluded the action was not barred and remanded for trial. Id. at 370-71. The Perry employees argue that, because the Hammes plaintiffs sold their stock four years before they filed the action, a two-year statute of limitations cannot apply to a breach of fiduciary duty claim involving an employee stock purchase agreement. However, the issue of the correct statute of limitations was neither raised nor addressed in Hammes. We also observe that there was both a negligence claim and a breach of fiduciary duty claim alleged in Hammes. The Perry employees apparently assume that the same statute of limitations necessarily applies to both when the two claims are based on the same conduct, but they do not explain why that is so. In any event, the important point is that the Hammes court simply did not address the correct statute of limitations for the breach of fiduciary duty claim, and the case therefore does not support a six-year statute of limitations in this case.

¶ 19. Hatleberg concerned an irrevocable trust drafted by an attorney without including certain provisions necessary to avoid negative tax consequences. Hatleberg, 283 Wis.2d 234, ¶¶ 6-7, 700 N.W.2d 15. The bank managing the trust became aware of the defect in the trust but did not reveal it to the grantor. Id., ¶¶ 9-10. The grantor's estate sued the bank alleging negligence. Id., ¶ 12.

¶ 20. This court affirmed the circuit court's finding of liability, concluding that the bank had breached the duty owed by one who, having no duty to act, gratuitously undertakes to do so and does so negligently. Hatleberg, 271 Wis. 2d 225, ¶ 10. We then began our discussion of damages by stating: "The statute of limitations on actions based on injury to property is six years. Wis. Stat. § 893.52." Id., ¶ 20. The parties debated when the statute of limitations began to run, and we concluded it began to run from notice to the grantor of the adverse tax consequences. Id. The Perry employees rely on our application of the six-year statute of limitations in § 893.52. However, the claim was a negligence claim. Hatleberg, 283 Wis.2d 234, ¶ 12, 700 N.W.2d 15. We recognize that we began our decision by stating that the bank "appeals a judgment for damages for breaching its fiduciary duty," Hatleberg, 271 Wis. 2d 225, ¶ 1; but the basis for liability in our decision was not a duty arising from a fiduciary relationship, but a duty that applies to anyone who undertakes to act gratuitously in certain circumstances. Id., ¶ 10 (citing Nischke v. Farmers & Merchants Bank & Trust, 187 Wis. 2d 96, 113, 522 N.W.2d 542 (Ct. App. 1994), citing Restatement (Second) of Torts § 323 (1965)). In addition, our discussion of whether public policy precluded liability — an analysis that courts apply to claims of negligence — makes clear that we were addressing a claim of negligence. Hatleberg, 271 Wis. 2d 225, ¶ 21. Thus, our decision is not support for a six-year statute of limitations for a breach of fiduciary duty claim.

¶ 21. The supreme court in Hatleberg disagreed with our decision that Restatement (Second) op Torts § 323 applied because that rule imposes liability only for "physical harm to person or property." Hatleberg, 283 Wis.2d 234, ¶¶ 26-28, 700 N.W.2d 15. However, the supreme court decided there was liability under another theory. The court concluded that, because the bank held itself out as an expert in managing the grantor's finances, it had a duty to avoid providing false information to its client, and it breached that duty by continuing to advise her to contribute money to the trust to save estate taxes after it realized the trust was defective. Id., ¶ 42. The court relied on the elements of the claim for negligent misrepresentation as well as the Restatement (Second) of Torts § 552, which imposes liability under certain conditions on one who, in the course of his or her profession, supplies false information, if he or she fails to exercise reasonable care. Hatleberg, 283 Wis.2d 234, ¶¶ 38-40, 700 N.W.2d 15.

¶ 22. The supreme court in Hatleberg did not discuss the statute of limitations, and its analysis is framed in negligence terms, analyzing several theories of duty under that heading. Id., ¶¶ 17-18. However, in its discussion of theories of duty, the supreme court blends fiduciary duties with duties the breach of which constitute negligence in a way that arguably lends support to the circuit court's analysis in this case and to the position of the Perry employees. After laying out the fundamental principle of Wisconsin law on negligence —that every person has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care — the supreme court in Hatleberg proceeded to analyze the scope of the bank's duties to the grantor under three headings: (1) duties arising in the bank's undisputed capacity as trustee; (2) duties arising in the bank's disputed capacity as financial planner or advisor; and (3) duty to avoid negligently providing inaccurate information. Id. Although the court ultimately concluded that, on the facts of the case, the bank did not have the duties asserted by the estate in the first two categories, the court's discussion may imply that a claim for breach of a fiduciary duty, at least in some circumstances, is indistinguishable from a claim of negligence. If so, that may support an argument that in such cases the statute of limitations should be the same.

¶ 23. However, we are persuaded that the better reading is that the supreme court in Hatleberg was addressing the negligence theories presented by the plaintiff and did not intend to opine on the relationship between a breach of fiduciary duty claim and a negligence claim, a relationship that was not an issue in the case before it — for statute of limitations purposes or for any other purpose. We arrive at this conclusion because of the well-established distinctions between a breach of fiduciary duty claim and a negligence claim. Although both involve duties and breaches of those duties, the source and scope of the duties are different.

¶ 24. The duties of a fiduciary arise out of a particular type of relationship in which either a person makes a formal commitment to act for the benefit of another or there are special circumstances from which the law will assume an obligation to act for another's benefit. Hatleberg, 283 Wis.2d 234, ¶ 32, 700 N.W.2d 15 (citing Merrill Lynch v. Boeck, 127 Wis. 2d 127, 136, 377 N.W.2d 605 (1985)). The specific duties of a fiduciary vary depending on the specific type of relationship but, in general, fiduciaries have duties of honesty, fidelity, and good faith, as well as the duty to act for the benefit of the others on all matters within the scope of the relationship. See, e.g., Hatleberg, 283 Wis.2d 234, ¶¶ 19-20, 700 N.W.2d 15 (trustee); Prosser v. Leuck, 225 Wis. 2d 126, 138-39, 592 N.W.2d 178 (1999) (insurer as fiduciary to insured); and Modern Materials, Inc. v. Advanced Tooling Specialists, Inc., 206 Wis. 2d 435, 442-43, 557 N.W.2d 835 (Ct. App. 1996) (corporate officer as fiduciary to corporation). A breach of a fiduciary duty is, fundamentally, a breach of the trust that is placed in the fiduciary because of his or her position in relation to the other.

¶ 25. In contrast, the duty that underpins negligence claims may be generally described as the duty to act reasonably under the circumstances. In the "ordinary negligence" case, the duty of ordinary care is the care that a reasonable person would use in similar circumstances. Gritzner v. Michael R., 2000 WI 68, ¶ 22, 235 Wis. 2d 781, 611 N.W.2d 906 (citing Wis JI — Civil 1005). In the professional negligence case, the duty is defined with reference to the standards of the profession, but, generally speaking, is still based on what a reasonable professional would do in the same or similar circumstances. See Kerkman v. Hintz, 142 Wis. 2d 404, 418-20, 418 N.W.2d 795 (1988).

¶ 26. We assume the supreme court would not alter the well-established distinction between a breach of fiduciary duty claim and a negligence claim without explicitly discussing the point. It has not done so in Hatleberg.

¶ 27. The Perry employees make an additional argument against the application of Wis. Stat. § 893.57 to their breach of fiduciary duty claims. They point out that this statute by its terms applies to an intentional tort "to the person," while their injuries are economic, that is, injury to their personal property. They find support for this position in Acharya v. Carroll, 152 Wis. 2d 330, 337, 448 N.W.2d 275 (Ct. App. 1989), in which we stated that Wis. Stat. § 893.54(1) did not apply to an action for legal malpractice because the term "injuries to the person" in that statute connoted "bodily injuries, whether physical or emotional." This argument ignores the supreme court's decision in Beloit Liquidating. The court there applied § 893.57 where the injury from the alleged breach of fiduciary duty was economic.

¶ 28. We conclude that the supreme court's decision in Beloit Liquidating is controlling and requires the application of the two-year statute of limitations in Wis. Stat. § 893.57 to the Perry employees' breach of fiduciary duty claims that the court decided in their favor. From the standpoint of the intentionality of the conduct, we see no significant distinction between that alleged in Beloit Liquidating and the failure to disclose information that the circuit court found to be a breach of fiduciary duty here. In addition, the injury in Beloit Liquidating was not bodily injury but was economic injury, that is, injury to personal property, as is the injury in this case. Finally, the Perry employees have provided us with no authority, and we have found none, that supports applying a different statute of limitations to a breach of fiduciary duty claim because the fiduciary relationship arises out of a trust agreement or employee stock purchase agreement.

¶ 29. Although we conclude that the supreme court's decision in Beloit Liquidating is controlling, we recognize that the supreme court's discussion in Hatle-berg of fiduciary duty in the context of a negligence claim arguably raises questions about the distinctions between a breach of fiduciary duty claim and a negligence claim that may bear on the proper statute of limitations in this case. In addition, the Perry employees' argument based on the term "to the person" in Wis. Stat. § 893.57 raises an issue that, in our view, would benefit from further consideration. However, these issues must be addressed to the supreme court.

¶ 30. The Perry employees do not argue that, if the two-year statute of limitations in Wis. Stat. § 893.57 applies, their breach of fiduciary duty claims are timely. We take this as a concession that the claims are barred if § 893.57 applies. Accordingly, we reverse the judgment of the circuit court in their favor and remand with instructions to dismiss the complaint.

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 other contentions the appellants make are: (1) the employees were not entitled to recover against the trustees because of a "limitation of liability" clause in the trust agreement; (2) they were not entitled to recover against Journal Communications because it had no fiduciary relationship with them; (3) they were not entitled to recover against the trust because it is not a suable entity; (4) the trustees did not breach a duty that they owed to the former employees; and (5) the award of attorney fees is contrary to settled law in Wisconsin.

       The issue in Warmka v. Hartland Cicero Mutual Insurance Co., 136 Wis. 2d 31, 32, 400 N.W.2d 923 (1987), was whether the one-year statute of limitations for an action on the policy under Wis. Stat. § 631.83(l)(a) applied or whether the bad faith action was a separate intentional tort subject to Wis. Stat. § 893.57.

       Wisconsin Stat. § 893.53 provides:
      Action for injury to character or other rights. An action to recover damages for an injury to the character or rights of another, not arising on contract, shall be commenced within 6 years after the cause of action accrues, except where a different period is expressly prescribed, or be barred.

       As to this fourth individual, after the trial the parties stipulated to the amount of damages, with the defendants reserving the right to challenge the theory of liability.

       More specifically, the court determined that the trust was liable if a clause in the trust agreement entitled "Limitation on Liability of Trustees for Losses" absolved the trustees from liability.

       Wisconsin Stat. § 879.37 provides:
      Attorney fees in contests. Reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters, to an unsuccessful proponent of a will if the unsuccessful proponent is named in the will to act as personal representative and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named to act as personal representative in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.
      Wisconsin Stat. § 701.14(1) provides:
      Circuit court procedure in trust proceedings. (1) Generally. A proceeding in the circuit court involving a living or testamentary trust may be commenced by a trustee or other person interested in the trust and, except as otherwise provided in this chapter, all probate procedure governing circuit courts, so far as it may be applicable, shall apply to such proceeding.

       All class members who were not awarded damages by the circuit court appealed the judgment. The defendants filed a cross-appeal. By order dated July 21, 2004, this court dismissed the appeal on jurisdictional grounds. After the supreme court denied the petition for review of that order, the cross-appellants, the defendants, proceeded with their cross-appeal. The respondents are the four former employees of Perry who were awarded damages by the circuit court. We will refer to them as "the Perry employees."

       Although the court concluded that either Wis. Stat. §§ 893.52 or 893.53 applied, the Perry employees do not mention § 893.53.

        Green v. Granville Lumber & Fuel Co., 60 Wis. 2d 584, 590, 211 N.W.2d 467 (1973); Estate of Schroeder v. Gateway Transp. Co., 53 Wis. 2d 59, 63, 67, 191 N.W.2d 860 (1971); Younger v. Rosenow Paper & Supply Co., 51 Wis. 2d 619, 627, 188 N.W.2d 507 (1971); Noonan v. Northwestern Mut. Life Ins. Co., 2004 WI App 154, ¶¶ 31-32, 276 Wis. 2d 33, 687 N.W.2d 254; Policemen's Annuity & Benefit Fund v. City of Milwaukee, 2001 WI App 144, ¶¶ 13-16, 246 Wis. 2d 196, 630 N.W.2d 236; Atkinson v. Everbrite, Inc., 224 Wis. 2d 724, 733, 592 N.W.2d 299 (Ct. App. 1999); Welter v. City of Milwaukee, 214 Wis. 2d 485, 496-97, 571 N.W.2d 459 (Ct. App. 1997); Jensen v. Janesville Sand & Gravel Co., 141 Wis. 2d 521, 528-29, 415 N.W.2d 559 (Ct. App. 1987). In re Revocable Trust of McCoy, 142 Wis. 2d 750, 419 N.W.2d 301 (Ct. App. 1987), does not mention any statute of limitations.

       The estate also sued the attorney and that claim settled. Hatleberg v. Norwest Bank Wisconsin, 2005 WI 109, ¶ 12, 283 Wis.2d 234, 700 N.W. 15.

       The elements of a claim for breach of fiduciary duty are: (1) the defendant had a fiduciary duty; (2) the defendant breached that duty; and (3) the breach of duty caused injury to the plaintiff. See Reget v. Paige, 2001 WI App 73, ¶ 12, 242 Wis. 2d 278, 626 N.W.2d 302. The elements of a claim of negligence are: (1) the existence of a duty of care on the part of the defendant; (2) a breach of that duty of care; (3) a causal connection between the defendant's breach of the duty of care and the plaintiffs injury; and (4) actual loss or damage resulting from the injury. Gritzner v. Michael R., 2000 WI 68, ¶ 19, 235 Wis. 2d 781, 611 N.W.2d 906 (citations omitted).

       Part of the circuit court's reasoning here was that attorneys have a fiduciary relationship with their clients and the six-year statute of limitations in Wis. Stat. § 893.53 is applied in attorney malpractice cases. See, e.g., Smith v. Herrling, Myse, Swain & Dyer, Ltd., 211 Wis. 2d 787, 790, 565 N.W.2d 809 (Ct. App. 1997), and Acharya v. Carroll, 152 Wis. 2d 330, 337, 448 N.W.2d 275 (Ct. App. 1989). However, because the claims in those cases were for malpractice, not for breach of the attorney's fiduciary duty, the cases do not support a six-year statute of limitations in this case.

       We have reviewed the record to make sure that the circuit court and all parties understood that they were trying claims for breach of fiduciary duty and not for negligence. We are satisfied that the claims determined in the Perry employees' favor were framed by the court, tried and argued by the parties, and decided by the court as claims for breach of fiduciary duty, not as claims for negligence, notwithstanding the court's use of the term "negligent breach of fiduciary duty."

       Wisconsin Stat. § 893.54(1) provides:
      Injury to the person. The following actions shall be commenced within 3 years or be barred:
      (1) An action to recover damages for injuries to the person.


author: NETTESHEIM, J.

text:
    Helen F. Losee, Plaintiff-Appellant, v. Marine Bank, Defendant-Respondent.
    Court of Appeals

      No. 2004AP1938.

      Oral argument June 1, 2005.

      Decided July 13, 2005.

    2005 WI App 184
    (Also reported in 703 N.W.2d 751.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs and oral argument of Catherine A. La Fleur, oí Hailing & Cayo, S.C. of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief and oral argument of R. Timothy Muth oí Reinhart, Boerner, Van Deuren, S.C. of Milwaukee.
    Before Brown, Nettesheim and Snyder, JJ.
   NETTESHEIM, J.

¶ 1. Helen E Losee appeals from a summary judgment granted in favor of Marine Bank. Helen is seeking to recover amounts held in a certificate of deposit at Marine Bank. Helen's son, John E Losee, Jr., acting pursuant to a Durable Power of Attorney for Financial Matters (POA), executed two Assignment of Deposit Accounts which assigned a certificate of deposit account issued by Marine Bank to Helen in the amount of $230,552.61. John did so in order to secure loans for his personal business.

¶ 2. Helen argues that John was self-dealing when he executed the assignments and therefore the assignments are unenforceable pursuant to our decision in Praefke v. American Enterprise Life Insurance Co., 2002 WI App 235, 257 Wis. 2d 637, 655 N.W.2d 456, which prohibits self-dealing not specifically permitted in the POA. Based on John's self-dealing, Helen argues that Marine Bank unlawfully converted the funds on deposit for its own use in satisfying the debts of John's business.

¶ 3. We conclude that John engaged in unauthorized self-dealing as a matter of law. While Helen herself executed the initial mortgage and assignment of rents without implicating the POA, John's further actions as to the form of the collateral were motivated by his own business exigencies and in disregard of Helen's best interest. The simple fact of unauthorized self-dealing in a POA relationship is enough to void the assignments of the certificate of deposit to Marine Bank. Therefore, we reverse the grant of summary judgment to Marine Bank on that basis. We remand for the trial court to address the effect, if any, of John's self-dealing on Helen's conversion claim against Marine Bank.

FACTS

¶ 4. In 1994, Helen, a widow, executed a POA document appointing John, one of her four children, as her attorney-in-fact. In October 1997, John's company, JFL Manufacturing, Inc., obtained a $75,000 loan from Marine Bank. John asked Helen to provide collateral for that loan in the form of a mortgage and assignment of rents covering a condominium she owned. Helen agreed and signed the mortgage and assignment of rents on October 20, 1997. The terms of the mortgage provided for the securing of "all future amounts Lender in its discretion may loan to Borrower,. .. however, in no event shall such future advances (excluding interest) exceed in the aggregate $1,000,000."

¶ 5. Later, JFL Manufacturing began encountering financial difficulties. On April 12, 2001, the mortgage Helen signed was used to secure an additional $600,000 loan to JFL Manufacturing; a month later, the mortgage again was used to secure an additional $200,000 loan to JFL Manufacturing. Helen had begun mentally deteriorating from the effects of dementia by the time the additional loans were made, and John did not discuss the increase in JFL Manufacturing's credit with her. John signed for the added indebtedness both in his capacity as Helen's POA and as president of JFL Manufacturing.

¶ 6. In October 2001, John, as Helen's POA, asked Marine Bank to release her condominium from the mortgage and assignments of rents so that it could be sold. Marine Bank agreed to release the mortgage and condominium provided that the net proceeds of the sale be placed in a certificate of deposit assigned to Marine Bank. On October 4, 2001, acting as Helen's POA, John executed an Assignment of Deposit Account with Helen as the grantor, JFL Manufacturing as the borrower and Marine Bank as the lender. Then on October 8, 2001, John executed another Assignment of Deposit Account, again naming Helen as grantor, himself as POA, JFL Manufacturing as the borrower and CIB Marine Capital, LLC, as the lender. (CIB Marine Capital is a different company than Marine Bank but is related to it.) The proceeds from the sale of Helen's condominium, and the amount placed in the certificate of deposit, were $230,552.61. John testified at deposition that he agreed to grant Marine Bank the security interest in the certificate of deposit so as to continue the operation of his business. He also testified that he believed making that assignment limited Helen's financial flexibility if his business should fail and that Marine Bank was "extremely involved" in all of his business survival attempts. JFL Manufacturing later defaulted on its loans and Marine Bank enforced its security interest in the entire amount of the certificate of deposit.

¶ 7. At John's behest, Helen filed this action against Marine Bank requesting declaratory relief pursuant to Wis. Stat. § 806.04 (2003-04). Helen argued that because the POA did not specifically permit self-dealing, the assignments by John of the certificate of deposit were unenforceable and void pursuant to Praefke. Helen additionally argued that Marine Bank unlawfully converted the funds on deposit to its own use to satisfy debts of JFL Manufacturing.

¶ 8. Helen moved for judgment on the pleadings, which motion was denied after a hearing. Marine Bank subsequently moved for summary judgment. Helen opposed Marine Bank's motion and requested summary judgment in her favor.

¶ 9. The trial court concluded that John had not engaged in self-dealing, stating that "[John] did not use his durable power of attorney to make a gift to himself or on his behalf to [Marine Bank]. Rather, [John] used his power to change the form of the collateral, but did nothing to change the obligation itself that [Helen] had already established with [Marine Bank]." The trial court granted Marine Bank summary judgment on the self-dealing issue and, as a result, did not reach the conversion issue. Helen appeals.

DISCUSSION

¶ 10. Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 316-17, 401 N.W.2d 816 (1987). In assessing whether summary judgment is appropriate, we first determine whether the complaint states a claim, and, if so, whether there are any genuine issues of material fact for trial. Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Wis. Stat. § 802.08(2). An appellate court will reverse a summary judgment if the record reveals that material facts are in dispute or if the trial court misapplied the law. Schmitz v. Firstar Bank Milwaukee, 2003 WI 21, ¶ 6, 260 Wis. 2d 24, 658 N.W.2d 442.

¶ 11. We turn first to the issue of whether John was self-dealing while acting pursuant to the POA. Helen argues that this court's decision in Praefke mandates a conclusion that, because the POA did not expressly permit John to execute the assignment of deposit accounts for the benefit of his company, his actions in that regard constituted unauthorized self-dealing. Since the assignments to Marine Bank were made without authority, Helen's argument continues, they are void and Marine Bank has no entitlement to her funds. Marine Bank argues that Praefke does not apply because Helen herself agreed to the obligations well before John's actual exercise of the POA. The bank asserts that the certificate of deposit simply was an alternate form of collateral.

¶ 12. The heart of the parties' arguments does not implicate any genuine issue of material fact. Therefore, the only question on appeal is whether the trial court properly applied the law in determining that no self-dealing occurred. See Schmitz, 260 Wis. 2d 24, ¶ 6.

¶ 13. Helen contends that this court's decision in Praefke controls this case. However, the trial court agreed with Marine Bank that Praefke does not apply at all. A brief review of Praefke is useful. Praefke, the daughter of Glasslein's long-time friend, became Glasslein's attorney-in-fact pursuant to a durable POA. Praefke, 257 Wis. 2d 637, ¶ 2. After Glasslein later was diagnosed with dementia, Praefke, acting as attorney-in-fact, changed the payable-on-death beneficiary designations on Glasslein's assets to herself. Id., ¶ 3. When Glasslein died, Praefke made claim for the proceeds of Glasslein's annuity accounts. Id., ¶ 4. Praefke argued that the broad grant of authority of the durable POA included the authority to make gifts to herself. Id., ¶ 6.

¶ 14. This court rejected Praefke's arguments. Following Alexopoulos v. Dakouras, 48 Wis. 2d 32, 179 N.W.2d 836 (1970), we concluded that Praefke lacked authority to make gifts to herself because the broad language of the POA agreement did not contain express written authorization. Praefke, 257 Wis. 2d 637, ¶ 1. Setting forth a "bright-line rule," we held that "an attorney-in-fact may not make gratuitous transfers of a principal's assets unless the power of attorney from which his or her authority is derived expressly and unambiguously grants the authority to do so." Id., ¶ 20. In so doing, we noted that the basic policy concern underlying the proscription against self-dealing is "the potential for fraud that exists when an agent acting pursuant to a durable power of attorney has the power to make gifts, especially after the principal becomes incapacitated." Id., ¶ 12. Accordingly, we held that before any self-dealing will be deemed permissible, it "must be specifically authorized in the instrument." Id.

¶ 15. We agree that this case is not precisely like Praefke where the agent attempted to shield her self-gifting actions with the broad language of the POA document. It is more Praefke's policy underpinnings which we find instructive and persuasive.

¶ 16. Executing a POA document creates an agency relationship between agent and principal. See Wis. Stat. §§ 243.07(1)(a) and 243.10(1). "It is a well-established tenet of agency law that an attorney-in-fact has a fiduciary obligation to the principal." Praefke, 257 Wis. 2d 637, ¶ 9; see also Alexopoulos, 48 Wis. 2d at 40-41. The POA document authorizes the holder of the POA to undertake acts for the benefit of the principal, not for the agent. See Alexopoulos, 48 Wis. 2d at 40. The agent's duty is to act solely for the benefit of the principal in all matters connected with the agency, even at the expense of the agent's own interests. Bank of Cal. v. Hoffmann, 255 Wis. 165, 171, 38 N.W.2d 506 (1949). The powers of the attorney-in-fact are strictly construed and are interpreted to grant only those powers that are clearly delineated or specified. Praefke, 257 Wis. 2d 637, ¶ 9.

¶ 17. Helen executed the POA document in 1994. In 1997, without invoking the POA, Helen personally executed an assignment of rents and a mortgage against her condominium. Both were done to help John cover his business expenses, which at the time totaled about $75,000. In 2001, John's business encountered serious difficulties. In an attempt to address the problems, John used the POA to secure from Marine Bank a working capital line, a $600,000 term loan and $200,000 in mezzanine financing. John did not discuss with Helen the fact that he used her condominium as collateral to secure the added financing. She had begun deteriorating mentally and John testified that he did not think she was capable of understanding the financial transactions at that time.

¶ 18. Marine Bank focuses on the fact that Helen herself executed the mortgage without invoking the POA. The bank argues that John's subsequent assignments to it of the certificate of deposit merely converted one form of collateral for another and did nothing to change any obligation Helen already had assumed. We are not persuaded by this ordering of the facts. The critical point is that John used his POA status to make decisions with an eye toward his own business interests. Whether or not Helen suffered any harm or prejudice actually is beside the point. Indeed, proof of injury to the principal is unnecessary.

[A] principal need not prove any injury to avoid a transaction in which the agent has acted as an adverse party without his [or her] knowledge and consent. The principle is one of prevention, not remedial justice, which operates however fair the transaction may have been — however free from every taint of moral wrong.

Bank of Cal., 255 Wis. at 171a (quoted source omitted).

¶ 19. Nothing suggests that any of John's actions were motivated by greed. The fact remains, however, that his interests — not Helen's — prompted his decisions. This represents a breach of John's fiduciary duty to Helen and falls within the classic definition of self-dealing, "Participation in a transaction that benefits oneself instead of another who is owed a fiduciary duty." Black's Law Dictionary 1390 (8th ed. 2004). "Absolute fidelity and loyalty to the interests of his [or her] principal is the first duty and the highest obligation of an agent." Bockemuhl v. Jordan, 270 Wis. 14, 18, 70 N.W.2d 26 (1955) (quoted source omitted). John did not act solely for the benefit of Helen in all matters connected with his agency, "even at the expense of [his] own interest." See Praefke, 257 Wis. 2d 637, ¶ 9; see also Bank of Cal., 255 Wis. at 171. To the contrary, John undertook his course of action for the express purpose of continuing the operation of his company, despite knowing that assigning the security interest limited Helen's financial flexibility.

¶ 20. John's actions plainly amounted to self-dealing unauthorized by the POA document. We note that John acknowledges as much since, as Marine Bank points out in its brief, John testified that it was his idea for Helen to file this lawsuit against the bank. Since John essentially alleges his own self-dealing, we think Marine Bank is hard-pressed to argue that Helen should not prevail.

¶ 21. In sum, we conclude that John's exercise of the POA clearly points to unauthorized self-dealing as a matter of law. We therefore reverse the grant of summary judgment to Marine Bank. We hold only that John engaged in self-dealing. We make no determination as to how this affects Helen's conversion claim against Marine Bank. We remand for further proceedings on that question.

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

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


text:
    Marvin Herman, Richard Hummel, Jack Fleming II, Jay Goethal, Lawrence Malsch, and Town of Delavan, Plaintiffs-Appellants, v. County of Walworth, Walworth County Land Management Committee, Zoning Manager of Walworth County Department of Planning, Zoning, and Sanitation, Rulo Clark, Charlotte Peterson, Gregory Halden, Jerome Palzkill, Richard Kuhnke, Sr., Richard Gramse, and Nancy Gramse, Defendants-Respondents.
    Court of Appeals

      No. 2004AP2080.

      Submitted on briefs April 14, 2005.

      Decided July 13, 2005.

    2005 WI App 185
    (Also reported in 703 N.W.2d 720.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Steven R. Wassel and Steven C. Harvey of Wassel Law Offices, Delavan.
    On behalf of the defendants-respondents County of Walworth, Walworth County Land Management Committee, Zoning Manager of Walworth County Department of Planning, Zoning, and Sanitation, Rulo Clark, Charlotte Peterson, Gregory Halden, Jerome Palzkill, and Richard Kuhnke, Sr., the cause was submitted on the brief of Mari E. Nahn, Deputy Corporation Counsel, Walworth County Corporation Counsel's Office.
    On behalf of the defendants-respondents Richard Gramse and Nancy Gramse, the cause was submitted on the brief of Daniel S. Draper of Gagliardi, O'Brien, Braden, Olson & Capelli, Lake Geneva.
    Before Anderson, EJ., Brown and Snyder, JJ.
   SNYDER, J.

¶ 1. The Town of Delavan, together with five members of the Town Board, appeal from a judgment and an order upholding the Walworth County Land Management Committee's (now known as the Walworth County Zoning Authority) approval of Richard and Nancy Gramses conditional use permits. The disputed permits satisfied the requirements of the Walworth County shoreland zoning ordinance but violated the Town of Delavan land division ordinance and master plan. The Town petitioned for certiorari review of the County Zoning Authority's decision. The Town contends that the County Zoning Authority violated Wis. Stat. ch. 236 (2003-04), improperly favored the County's ordinance over the Town's ordinance, and failed to accord the Town's master plan sufficient deference. We disagree and affirm the judgment and order of the circuit court.

FACTS

¶ 2. The Gramses own two adjacent parcels of lakefront property in the Town of Delavan. One parcel is approximately 67,000 square feet and the other is just under 69,000 square feet. Each has approximately forty-one to forty-three feet of lake frontage and both are zoned R-2, Single Family Residential District (Sew-ered). The Gramses propose to place one condominium, consisting of two residential units, on each lot. The Gramses filed an application for a conditional use permit for each parcel with the County Zoning Authority.

¶ 3. On August 21, 2003, the County Zoning Authority held a public hearing on the Gramses' applications. The Delavan Town Chairman, Marvin Herman, attended the hearing and objected to the permits, arguing that they violated the Town's master plan. Herman stated that the master plan restricts development to single-family residences, with one residential unit per 40,000 square feet of property. The Gramses' proposed development would allow approximately 34,000 square feet per residential unit. Herman also stated that the Gramses' plan failed to comply with the Town's land division ordinance. He argued that because the Gramses' proposed development provided only forty-one feet of lake frontage per parcel, it failed to meet the Town's land division ordinance requirement of 100 feet.

¶ 4. A local resident also spoke in opposition to the Gramses' applications. John Pelletier stated that he owned property approximately 120 feet west of the proposed development and was concerned about the potential erosion of the "small-town character of Dela-van Lake." He submitted a petition signed by thirty-four residents who opposed the Gramses' applications.

¶ 5. Nonetheless, the County Zoning Authority approved the Gramses' conditional use permits on a vote of four to one. It observed that under the County's current R-2 zoning, the Gramses could put one residential unit per 15,000 square feet of property and therefore the proposed development allowed "twice the required density of the R-2 District" as well as a sufficient setback from the lakeshore.

¶ 6. The Town petitioned for certiorari review, arguing that the County Zoning Authority "must give due deference by consideration of the mandates of the Town's master plan." The Town also reiterated its position that the proposed condominium development violated its land division ordinance. The Town sought an order declaring the County Zoning Authority's approval illegal and a permanent injunction restraining the Gramses from proceeding with the development so long as it violated the Town's master plan and land division ordinance.

¶ 7. The circuit court determined that the County Zoning Authority's actions were in accordance with applicable law and supported by ample evidence. The court upheld the approval of the Gramses' conditional use permits and granted judgment in favor of the County. The Town appeals.

DISCUSSION

¶ 8. The Town frames the appellate issue as follows: Did the County Zoning Authority err by granting the Gramses' permits where the applicants proposed to divide one lakefront lot into two parcels for condominium development and the proposal complied with the County shoreline zoning ordinance but violated the Town's land division ordinance and the Town's master plan? It claims error in several respects. First, the Town claims that, by authority granted under Wis. Stat. § 236.45(2)(a), its land division ordinance and master plan control the minimum lake frontage and lot size requirements for residential development. It also contends that our supreme court's decision in Wood v. City of Madison, 2003 WI 24, 260 Wis. 2d 71, 659 N.W.2d 31, requires the County Zoning Authority to assure that the Gramses' proposal complies with the Town's land use ordinances. It further contends that the County Zoning Authority arbitrarily and unreasonably accepted the characterization of the Town's master plan as merely advisory, thereby denying the Town the right to regulate subdivision development within its boundaries. Finally, the Town accuses the County Zoning Authority of failing to properly consider the evidence before it.

Standard of Review

¶ 9. On appeal from a judgment entered on cer-tiorari from an administrative agency's determination, we review the record of the agency rather than the findings or judgment of the circuit court. Id., ¶ 12. Certiorari review requires us to ask: (1) whether the agency kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably have made the order or determination in question. Kapischke v. County of Walworth, 226 Wis. 2d 320, 327-28, 595 N.W.2d 42 (Ct. App. 1999). The decision of the agency is entitled to a presumption of correctness and validity. Id.

Applicability of Wis. Stat. ch. 236

¶ 10. The Town first argues that the Gramses' proposed development violates the Town's land division ordinance and master plan. The Gramses' proposal provides approximately 34,000 square feet of property per residential unit, but the Town's master plan requires 40,000 square feet. There is no dispute that the proposed use of the Gramses' property meets the County's R-2 zoning requirement of 15,000 square feet of property per unit. The Gramses' proposed development provides forty-one feet of lake frontage per parcel, but the Town's land division ordinance requires 100 feet of lake frontage.

¶ 11. The Town argues that under Wis. Stat. § 236.45, the more restrictive requirements of its land division ordinance and master plan must control. Section 236.45(2)(a) states that "any . .. town ... which has established a planning agency may adopt ordinances governing the subdivision or other division of land which are more restrictive than the provisions of this chapter." The Town contends that compliance with its master plan and land division ordinance is therefore mandatory.

¶ 12. In support of its position, the Town directs us to Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 327 N.W.2d 642 (1983), where our supreme court stated that "the regulation of minimum lot size is one of the 'further requirements' that a local government may impose on a subdivider pursuant to [Wis. Stat.] sec. 236.45." Town of Sun Prairie, 110 Wis. 2d at 65. The Town also argues that its "100 foot minimum lake frontage requirement per dwelling is essentially a lot width requirement, and therefore appropriately regulated by the Town's subdivision ordinance" under § 236.45(2)(b), which directs that § 236.45 "shall be liberally construed."

¶ 13. The County responds that Wis. Stat. ch. 236 is inapplicable because the Gramses' conditional use permits do not contemplate the subdivision of land as defined in Wis. Stat. § 236.02(12):

"Subdivision" is a division of a lot, parcel or tract of land by the owner thereof or the owner's agent for the purpose of sale or of building development, where:
(a) The act of division creates 5 or more parcels or building sites of 1 1/2 acres each or less in area; or
(b) Five or more parcels or building sites of 1 1/2 acres each or less in area are created by successive divisions within a period of 5 years.

The Town emphasizes that Wis. Stat. § 236.45(2)(a) expressly addresses "the subdivision or other division of land" and argues that the Gramses' proposal falls under the "other division of land." We disagree. Although this language broadens the application of § 236.45 to divisions of land that may fall outside of the definition of "subdivision," it still contemplates "divisions of land into parcels." Séc. 236.45(2)(a). Nothing in the Gramses' applications for conditional use permits requires a division of land. The only question before the County Zoning Authority was whether the Gramses' proposed development was an appropriate conditional use of their two existing lots. Therefore, we hold that § 236.45 does not apply.

The Town's Master Plan Under Step Now and Wood

¶ 14. The Town also argues that the County Zoning Authority misconstrued the law when it considered the Town's master plan as simply advisory rather than mandatory. It speculates that the County Zoning Authority's decision was based on "an erroneous reading" of Step Now Citizens Group v. Town of Utica Planning & Zoning Committee, 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833. Although the transcript of the hearing contains no reference to Step Now, we note that the Town's master plan was described as a "guide," which is consistent with our holding in that case. Step Now addressed a decision by the Town of Utica and Winnebago County to rezone the subject property from agricultural use to industrial use to facilitate the construction of an ethanol plant. Id., ¶ 1. In our decision, we discussed the role of a master plan developed pursuant to the comprehensive planning provisions of Wis. Stat. § 66.1001. Step Now, 264 Wis. 2d 662, ¶¶ 38-39. We concluded that "a land use plan is not mandatory but merely advisory." Id., ¶ 38.

¶ 15. The Town posits that any reliance on Step Now was improper because of our supreme court's decision in Wood. The Town points to Wood for the proposition that "[ajpproval of any plat is also conditioned on compliance with any subdivision ordinance validly enacted by the appropriate municipality, town, or county." Wood, 260 Wis. 2d 71, ¶ 15. The Town argues that both Step Now and Wood "relate to land regulation" and "[t]he only way to harmonize them is to hold Step Now inapplicable herein, because that case did not involve real property subject to further regulation under Ch. 236, Stats."

¶ 16. We see no need to harmonize the two. As our supreme court recognized, "zoning and subdivision plat approval authority are different types of land use controls." Wood, 260 Wis. 2d 71, ¶ 33. Nonetheless, our supreme court concluded that "Wis. Stat. ch. 236 does authorize a municipality to reject a preliminary plat. . . based upon a subdivision ordinance that considers the plat's proposed use." Wood, 260 Wis. 2d 71, ¶ 37. Here, the Town erroneously invokes the legal rule of Wood. The Gramses have applied for conditional use permits but have not submitted a plat for approval. Also, we have already determined that ch. 236 does not pertain to the facts at hand. Our holding in Step Now applies and the County Zoning Authority properly acknowledged that the Town's master plan was not mandatory. See Step Now, 264 Wis. 2d 662, ¶ 38.

Shoreland Zoning Conflicts

¶ 17. The Town argues that its land division ordinance prohibits the Gramses from developing lots with less than 100 feet of lake frontage. The Town's land division ordinance states as follows:

LAKE AND STREAM ACCESS. No land shall be developed as a condominium or planned development... in such manner as to give access to any lake or stream ... to more than one family for each unit of lake or stream frontage equaling in width the minimum required width of a lot under the Walworth County Shoreland Zoning Ordinance for the zoning district in which the land is located.

The Town's appendix includes a document labeled "Land Division Ordinance" with the handwritten notation "100 FT. = minimum width under R-2." We note that the Town's ordinance addresses lake frontage width, but the County shoreland zoning ordinance appears to address lot width. The Town does not make the distinction clear and does not develop any argument from which we can infer that the Gramses' proposed development violates the County's shoreland zoning ordinance. Therefore, we consider the Town's position only to the extent that it implicates the Town's ability to regulate shoreland zoning where a county shoreland zoning ordinance exists.

¶ 18. Our legislature has given shoreland zoning authority to counties. Wisconsin Stat. § 59.692(lm) states that "each county shall zone by ordinance all shorelands in its unincorporated area." The statutes also provide that ordinances enacted under a county's shoreland zoning powers "shall not require approval or be subject to disapproval by any town or town board." Sec. 59.692(2)(a). Furthermore, "[i]n counties having a county zoning ordinance, no zoning ordinance or amendment of a zoning ordinance may be adopted under this section unless approved by the county board." Wis. Stat. § 60.62(3). The Town's desired zoning restrictions were never adopted by the County Board. Accordingly, the County Zoning Authority applied the current Walworth County zoning ordinance and ultimately approved the Gramses' proposed conditional use.

¶ 19. Because the Town's master plan is advisory rather than mandatory, and because the Town's land division ordinance was never adopted by the County Board, the County's shoreland zoning ordinance controls. The County Zoning Authority properly applied the law when it approved the Gramses' applications.

Arbitrary or Unreasonable Decision and Failure to Consider Evidence

¶ 20. The Town further contends that the County Zoning Authority acted in an arbitrary, oppressive or unreasonable manner. For support, it resubmits its previous contentions and concludes that the County Zoning Authority "obviously felt bound to approve the permit... despite [its] manifest desire to deny the permit." The Town also speculates that had the County Zoning Authority "exercised its judgment, from the deliberations, it seems likely that the proposal would have been denied...." The Town seems to argue that where a board acts reluctantly, it also acts arbitrarily, oppressively, or unreasonably. The Town cites no legal authority for its position. We will not consider arguments unsupported by legal reasoning; therefore, our consideration of this issue ends here. See Brandon Apparel Group, Inc. v. Pearson Props., Ltd., 2001 WI App 205, ¶ 16 n.6, 247 Wis. 2d 521, 634 N.W.2d 544.

¶ 21. Finally, the Town states that the County Zoning Authority failed to properly consider the evidence and thereby failed to properly decide the issue at hand. More specifically, the Town contends that the County Zoning Authority erred when it failed to consider the master plan as, at a minimum, an advisory tool. The Town then asserts that the County Zoning Authority "wrestled with the conflict between shore-land zoning, master plans and subdivision ordinances, but misapplied the law, electing to completely ignore any restrictions created by the Town of Delavan. This is the hallmark of a failure to act reasonably." We disagree.

¶ 22. As the Town describes, and the record reveals, the County Zoning Authority did indeed "wrestle" with, or at least discuss, the master plan and ordinances relevant to the Gramses1 applications. The members reviewed drawings and a videotape of the property. They heard testimony from the Gramses' lawyer, the Town chairman, and a local resident who also presented a petition signed by thirty-four residents opposed to the Gramses' applications. The County Zoning Authority ultimately decided that the Town's master plan could not overcome the County's R-2 zoning ordinance and determined that the Gramses' applications met the County's zoning criteria. The agency's determination will not be disturbed if any reasonable view of the evidence sustains it. Kapischke, 226 Wis. 2d at 328. We conclude that the County Zoning Authority properly considered the evidence and we will not disturb the result.

CONCLUSION

¶ 23. The County Zoning Authority's decision is entitled to a presumption of correctness and validity. See id. Because we conclude that the County Zoning Authority properly applied the law and exercised its judgment in considering the evidence before it, we affirm.

By the Court. — Judgment and order affirmed.

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

       Walworth County tax parcels FBA 00008 and FBA 00009.

       Wisconsin Stat. § 66.1001(1) (a) defines a "comprehensive plan" as follows:
      1. For a county, a development plan that is prepared or amended under s. 69.69(2) or (3).
      2. For a city or a village, or for a town that exercises village powers under s. 60.22(3), a master plan that is adopted or amended under s. 62.23(2) or (3).
      3. For a regional planning commission, a master plan that is adopted or amended under s. 66.0309(8), (9) or (10).

       The two parcels are pie-shaped lots with the narrow end along the lake, and each has approximately forty-one to forty-three feet of lake frontage; the widest point of each lot measures just over 151 feet.

       We recognize that "[i]f an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise." Wis. Stat. § 59.692(2)(b) (emphasis added). Here, we need not address whether § 59.692(2)(b) prefers the Town's lake frontage restrictions to the County's shoreland zoning ordinance because the Town has not demonstrated that its provision predates the County's shoreland zoning ordinance.

       During its deliberations, the County Zoning Authority noted that the Town had influenced the creation of a different zoning designation known as R-2A. There is no indication, however, that the Town proposed any change to the County's R-2 zoning requirements.