author: BROWN, J.

text:
    Dustin Dowhower, a minor, by his Guardian ad Litem Susan Rosenberg, Tamara Dowhower and Larry Dowhower, Plaintiffs-Respondents, v. Simon Marquez and Viking Insurance Company of Wisconsin, Defendants, West Bend Mutual Insurance Co., Defendant-Appellant, Aetna Life Insurance Co., Defendant.
    Court of Appeals

      No. 01-1347.

      Submitted on briefs December 13, 2001.

    Decided January 15, 2003.

    2003 WI App 23
    (Also reported in 659 N.W.2d 57.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeffrey Leavell of Jeffrey Leavell, S.C., of Racine.
    On behalf of the plaintiffs-respondents, the cause was submitted on the briefs of Robert L. Jaskulski and Brian B Mularski of Domnitz, Mawicke & Goisman, S.C., of Milwaukee.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review filed.

   BROWN, J.

¶ 1. West Bend Mutual Insurance Co. appeals from a judgment declaring the reducing clause contained in the policy it issued to the Dowhowers unenforceable and requiring it to pay the Dowhowers the full $50,000 limit of liability guaranteed in the policy. After a thorough review of the policy at issue, we determine that the policy as a whole is inconsistent and contradictory. We conclude that the policy failed to clearly inform the Dowhowers that they were purchasing a fixed level of underinsured motorist recovery that would be arrived at by combining payments made from all sources. Thus, the reducing clause's effect is not "crystal clear" within the context of the whole policy. Accordingly, the policy is ambiguous and the reducing clause is unenforceable. We therefore affirm.

¶ 2. The facts in this case are undisputed. While crossing the street in April 1997, Dustin Dowhower, a minor, was injured as a result of the negligence of a motorist. Viking Insurance Company of Wisconsin insured the vehicle that struck Dowhower. Viking's policy carried a limit of $25,000 per person. Viking paid its $25,000 policy limit to the Dowhowers. Pursuant to both Wis. Stat. § 632.32(5)(i) (1999-2000), which authorizes insurance companies to include reducing clauses in their policies, and the reducing clause in the Dowhowers' policy, West Bend paid the Dowhowers $25,000, an amount representing the $50,000 UIM bodily injury limit under the Dowhowers' UIM policy minus the $25,000 paid by Viking.

¶ 3. The Dowhowers sought a judgment from the trial court declaring unenforceable the reducing clause provision in the UIM policy and contending that Wis. Stat. § 632.32(5)(i) violated the United States and Wisconsin Constitutions. West Bend filed a motion to dismiss the action and counterclaimed for a declaration that it had paid all that it owed pursuant to § 632.32(5)(i) and the policy language. The trial court granted the Dowhowers' motion for declaratory judgment on the grounds that § 632.32(5)(i) violated the substantive due process rights of the Dowhowers. The court further declared that West Bend was obligated to provide $50,000 in UIM benefits to the Dowhowers. West Bend appealed and we certified to our supreme court the issue of whether § 632.32(5)(i) violates substantive due process under the state and federal constitutions.

¶ 4. The supreme court accepted our certification and reversed the judgment of the trial court, holding that the statute did not deprive the Dowhowers of their constitutionally protected rights. Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶¶ 9, 36, 236 Wis. 2d 113, 613 N.W.2d 557 {Dowhower I)- The supreme court directed the trial court to determine on remand whether the language contained in the policy was ambiguous and, if so, whether a reasonable person in the position of the insured would have understood the policy to mean that the $50,000 limit in UIM coverage was to be a maximum recovery from all sources. Id. On remand, the trial court concluded that the policy was ambiguous and a reasonable person in the position of the Dowhowers would not have understood the policy to mean that the $50,000 limit in UIM coverage was to be a maximum recovery from all sources. The court then declared the UIM reducing clause in the policy unenforceable and required West Bend to pay the full $50,000 on the policy. West Bend appeals.

¶ 5. The resolution of this case involves the interpretation of language in an automobile insurance policy. The construction or interpretation of language in an insurance policy presents a question of law that we review de novo. Taylor v. Greatway Ins. Co., 2001 WI 93, ¶ 9, 245 Wis. 2d 134, 628 N.W.2d 916. If the language in an insurance policy is unambiguous, we must not rewrite the policy by construction. Dowhower I, 2000 WI 73 at ¶ 34. If the policy is ambiguous, we construe ambiguities in favor of coverage. Id. Words or phrases of an insurance policy are ambiguous if they are suscep-tibie to more than one reasonable construction. Smith v. Atl. Mut. Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597 (1990). If the language in an insurance policy is ambiguous, we interpret the language by attempting to determine "what a reasonable person in the position of the insured would have understood the words of the policy to mean." Dowhower I, 2000 WI 73 at ¶ 35 (citation omitted). In addition, the interpretation of ambiguous language in an insurance policy "should advance the insured's reasonable expectations of coverage." Taylor, 2001 WI 93 at ¶ 10.

¶ 6. Wisconsin Stat. § 632.32(5)(i) grants insurers the right to reduce their limits of liability by the sums paid by or on behalf of the tortfeasor. The statute reads as follows:

(5) PERMISSIBLE PROVISIONS ....
(i) A policy may provide that the limits under the policy for uninsured or underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply:
1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made.
2. Amounts paid or payable under any worker's compensation law.
3. Amounts paid or payable under any disability bénefits laws.

The parties do not dispute that the reducing clause West Bend issued to the Dowhowers conforms to the strictures of § 632.32(5)(i). Thus, a reducing clause itself is not ambiguous or contrary to public policy, see Dowhower I, 2000 WI 73 at ¶ 20, and the sole question before us is whether the reducing clause is invalid despite its compliance with the statute.

¶ 7. West Bend argues that the reducing clause in the Dowhowers1 policy is enforceable for several reasons. It asserts that the reducing clause is not obscured or hidden within the policy and the policy is therefore easy to read and user friendly. West Bend also contends that the policy informs the reasonable insured with crystal clarity that his or her recovery will be reduced by any payments made on behalf of the tortfeasor and sends no contradictory or false signals to the insured that would indicate otherwise. Finally, West Bend also seems to argue that even if the policy does contain inconsistencies, its reducing clause clarifies them and renders the policy enforceable.

¶ 8. In Dowhower I, the supreme court determined that UIM reducing clauses are valid when "the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources." Id. at ¶ 33. The court further recognized that "a reducing clause may be ambiguous within the context of the insurance contract." Id. at ¶ 35.

¶ 9. In Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223, the court explained that Dowhower I contemplated the consideration of the entire insurance policy and not simply the language contained in the reducing clause. See Schmitz, 2002 WI 98 at ¶ 42. The court determined that a UIM reducing clause is not valid merely because its terms are unambiguous and it complies with Wis. Stat. § 632.32(5)(i). See Schmitz, 2002 WI 98 at ¶¶ 48-49. Rather, the effects of the reducing clause must be "crystal clear in the context of the whole policy." Id. at ¶ 46. The policy in its entirety must clearly lead the reasonable insured to the conclusion that he or she is purchasing a predetermined amount of insurance that would be arrived at by combining payments from all permissible sources. See id. at ¶ 38; Dowhower I, 2000 WI 73 at ¶ 38 (Bradley, J., concurring.) In reaching this conclusion, the Schmitz court embraced portions of Justice Ann Walsh Bradley's concurrence in Dowhower I, which read, in part, "[although [the legislature] authorized reducing clauses under Wis. Stat. § 632.32(5)(i)l, the legislature envisioned clear policies without a hint of illusion to protect consumers from fraudulent practices. It did not authorize deception in the implementation of the statute." Schmitz, 2002 WI 98 at ¶ 39; see also Dowhower I, 2000 WI 73 at ¶ 50 (Bradley, J., concurring). Accordingly, if the coverage provided is misleading and unclear, the policy is ambiguous, or worse, and the reducing clause is not enforceable. Schmitz, 2002 WI 98 at ¶ 49.

¶ 10. In Schmitz, the court invalidated a reducing clause in an insurance policy that while complying with Wis. Stat. § 632.32(5)(i) was ambiguous when viewed in the context of the policy as a whole. Schmitz, 2002 WI 98 at ¶ 61. The court examined the whole policy, tracing the route the insured would have to take from the declarations page through the UIM portion and to the endorsement containing the reducing clause. Id. at ¶¶ 62-66. After working its way through the policy, the court concluded the policy was organizationally complex and plainly contradictory and hence failed to clearly set forth that the insured was purchasing a fixed level of UIM recovery arrived at by combining payments from all sources. Id. at ¶¶ 72, 75. Here we encounter similar problems when we attempt to trace the path the Dowhowers would have to take to understand the extent of West Bend's coverage.

¶ 11. We begin our discussion of the issue at hand with a brief explanation of the thirty-four page policy West Bend issued to the Dowhowers. West Bend's policy consists of a Declarations page, an Endorsement Schedule, a Table of Contents, four coverage parts, and a set of Wisconsin-specific provisions. The Declarations page lists the types of coverage the policy provides, including Underinsured Motorist Bodily Injury. For each type of coverage, the liability limits and premiums are provided. The Declarations page also includes a list of the applicable form numbers, but does not provide a corresponding label indicating what is on those forms. The second page is labeled "Endorsement Schedule" and lists each of the applicable form numbers and provides a corresponding label for the forms. Among the fourteen forms listed are numbers PP0402 "SPLIT UN-DERINSURED MOTORISTS LIMITS" and PP0428Z "UNDERINSURED MOTORSTS COVERAGE-WISCONSIN."

¶ 12. Pages three and four of the policy contain the Table of Contents. It is entitled "PERSONAL AUTO POLICY." Underneath this heading is the paragraph:

This insurance policy is a legal contract between the insured and the company. The index below provides a brief outline of some of the important features of your policy. This is not the insurance contract and only the actual policy provisions will apply. The policy itself sets forth in detail the rights and obligations of both you and your insurance company. IT IS THEREFORE IMPORTANT THAT YOU READ YOUR POLICY CAREFULLY.

The Table of Contents then lists the various types of coverage addressed in the policy, including: Liability Coverage, Medical Payments Coverage, Uninsured Motorists Coverage, and Coverage for Damage to Your Auto. Underinsured Motorists Coverage is not mentioned.

¶ 13. The fifth page of the policy includes the definitions. It does not define "declarations," "endorsement," "reducing clause" or "underinsured motorist."

¶ 14. Form number PP0402 is the thirty-first page of the policy. The form is entitled "SPLIT UNDER-INSURED MOTORISTS LIMITS." The first line of the form states, "Underinsured Motorists Coverage" and then instructs the insured to see the Declarations page, apparently for more information on the policy's liability limits for each person. The remaining text on the page reads in its entirety:

The first paragraph of the Limit of Liability provision in the Underinsured Motorists Coverage Endorsement is replaced by the following:
LIMIT OF LIABILITY
The limit of liability shown in the Schedule or in the Declarations for each person for Underinsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of "bodily injury" sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Underin-sured Motorists Coverage is our maximum limit of liability for all damages for "bodily injury" resulting from any one accident. This is the most we will pay regardless of the number of:
1. "Insureds;"
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the accident.
The endorsement must be attached to the Change Endorsement when issued after the policy is written.

¶ 15. The thirty-second page of the policy is form PP0428Z,. which is entitled "UNDERINSURED MOTORISTS COVERAGE-WISCONSIN." It states, "THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY." It then reads: "With respect to the coverage provided by this endorsement, the provisions of the policy apply unless modified by the endorsement." The endorsement then refers the policyholder to the Declarations for the limit of liability. The second page of the form describes West Bend's limit of liability for UIM coverage. The above quoted material from the form number PP0402 replaces the first paragraph under the section entitled "LIMIT OF LIABILITY." The second paragraph under Limit of Liability, Part B, represents the reducing clause and reads:

B. The limit of liability shall be reduced by all sums:
1. Paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A; and
2. Paid or payable because of the "bodily injury" under any of the following or similar law:
a. Workers' compensation law; or
b. Disability benefits law.

¶ 16. We begin our analysis with the Declarations page, the first page of the policy. We note that on the Declarations page of the policy, which is generally the portion of the insurance policy to which the insured looks first, West Bend lists the UIM coverage as "$50,000 each person $100,000 each accident" and does not provide any further explanation of the extent of its UIM coverage. A reasonable insured often looks only to the Declarations page to verify that he or she has been provided the coverage for which he or she contracted. Dowhower I, 2000 WI 73 at ¶ 41 (Bradley, J., concurring);- see also Schmitz, 2002 WI 98 at ¶ 62. The Declarations page here, like the Declarations page examined in Schmitz, fails to explain or even refer to the possibility that the policy's UIM liability will be subject to further limitations. See Schmitz, 2002 WI 98 at ¶ 62. After examining the Declarations page in the West Bend policy, a reasonable policyholder would come to the conclusion that West Bend would provide UIM coverage in the amount of $50,000. The only arguable sign directing the policyholder to the reducing clause is the list of forms on the bottom of the page. However, the list of forms does not say which form corresponds to which endorsement and thus the list is of no help to the insured. As Justice Bradley stated in her concurring opinion in Dowhower I, "[t]he Declaration page creates an illusion of coverage because it misrepresents West Bend's liability as $50,000, when in reality the insurer will rarely, if ever, disburse the full amount by virtue of the reducing clause found elsewhere in its policy." Dowhower I, 2000 WI 73 at ¶ 42 (Bradley, J., concurring).

¶ 17. Second, the next page of the policy is the Endorsement Schedule. West Bend asserts that because the schedule lists the form numbers for the "Split Underinsured Motorists Limits" and the "Underinsured Motorists Coverage-Wisconsin," the policy is user friendly because the insured can easily turn to both forms to understand the UIM coverage and the reducing clause. While the Endorsement Schedule could potentially direct the insured to the form containing a description of the policy's UIM coverage, where he or she would happen upon the reducing clause, the Endorsement Schedule does not define what a form or an endorsement is nor does it inform the insured of where he or she might find the forms containing the endorsements. Also, absent from the schedule is any indication that the limit of liability will be reduced by payments received from other sources. Thus, the schedule does not alter the insured's expectation that he or she would receive the full $50,000 amount set forth in the Declarations page. Furthermore, as we will explain, the description of West Bend's liability limits contained in the forms is confusing and inconsistent with the rest of the policy.

¶ 18. Third, should a policyholder turn to the Table of Contents in search of a more detailed explanation of his or her UIM coverage, he or she would not even find UIM coverage listed among the types of coverage discussed in the policy. The Table of Contents lists various types of coverage contained in West Bend's policy — Liability Coverage, Medical Payments Coverage, Uninsured Motorists Coverage, Coverage for Damage to Your Auto — and directs the policyholder to pages setting forth the "Limit of Liability" on each type of coverage. Although the Table of Contents instructs the policyholder to read the entire policy, it still does not reference UIM coverage at all nor does it contain any further explanation of the limits on liability. Thus, the Table of Contents would not dispel the insured's expectation of coverage in the amount of $50,000 that had been guaranteed in the Declarations page. See id., 2000 WI 73 at ¶ 44 (Bradley, J., concurring).

¶ 19. Finally, as Justice Bradley explained in her concurrence, in order for a reasonable insured to locate a discussion of a reduction in UIM coverage, he or she would be required to look beyond the Declarations page, which gives an insured an expectation of a full $50,000, and beyond the Endorsement Schedule and Table of Contents, which give a reasonable insured an expectation of no limitation of underinsured motorists coverage, and beyond approximately thirty additional pages of insurance policy jargon. See id. at ¶ 45 (Bradley, J., concurring). Once the insured finally is able to locate and examine the form numbers PP0402 and PP0428Z, he or she would still have difficulty comprehending the extent of his or her UIM coverage.

¶ 20. The first line of the endorsement entitled "Underinsured Motorists Coverage-Wisconsin" informs the insured that the endorsement changes the policy and that the insured should read the endorsement carefully. However, the endorsement then apparently refers the insured to the Declarations page for the policy's liability limits on UIM coverage, thereby upholding the reasonable insured's expectation that West Bend will pay the entire amount of the $50,000 guaranteed by the Declarations.

¶ 21. Form PP0402 entitled. "Split Underinsured Motorists Limits," which is located on the thirty-first page of the policy and precedes the UIM endorsement, directs the insured to replace the first provision under the heading "Limit of Liability" on the subsequent UIM endorsement. The provision reads in part: "The limit of liability shown in the . . . Declarations for each person for Underinsured Motorists Coverage is our maximum limit of liability for all damages .... This is the most we will pay...." (Emphasis added.) West Bend focuses on the term "our maximum" and argues that it "unambiguously suggests] that a lower limit (less than the maximum limit) may be applicable." While this may be true, the term also unambiguously suggests to a reasonable insured that if his or her claim were proven to be $50,000 or more, he or she would be entitled to a full $50,000 — the maximum amount set forth on the Declarations page. In fact, the provision sends a false signal to the insured; it suggests that the maximum limit is indeed attainable. It reinforces the illusion of coverage Justice Bradley spoke of in Dowhower I, as West Bend will rarely, if ever, pay the full amount. See id. at ¶ 42 (Bradley, J., concurring).

¶ 22. The next page — the endorsement or form PP0428Z — contains West Bend's reducing clause. As we have already noted, the reducing clause comports with the requirements of Wis. Stat. § 632.32(5)(i) and itself creates no ambiguity. West Bend, however, seems to argue that the reducing clause clarifies any ambiguity that might otherwise exist within the policy concerning the extent of UIM coverage. While the reducing clause, standing alone, is unambiguous, the law prevents us from reading the clause in a vacuum as West Bend asks us to do. Schmitz dictates that we review what appears to be an unambiguous reducing clause within the context of the entire insurance policy to determine whether the coverage provided is understandable and clear. See Schmitz, 2002 WI 98 at ¶ 49. Schmitz teaches us that in order for the policy to explain the effects of the reducing clause with crystal clarity, all of the provisions helping the insured navigate his or her way through the policy must be consistent with one another and with the reducing clause.

¶ 23. Here, the policy's sections send contradictory messages that would befuddle a reasonable insured in the position of the Dowhowers. While an insured might carefully work his or her way through the policy as instructed in the Table of Contents, after doing so, he or she still would not understand the extent of his or her UIM coverage. Viewed in conjunction, the Declarations page, the Endorsement Schedule, the Table of Contents and the UIM provisions create confusion and would lead the reasonable insured to expect full coverage from West Bend in the amount of $50,000. See Dowhower I, 2000 WI 73 at ¶ 47. The reducing clause, when viewed in the context of the whole policy, fails to clearly set forth that the insured is purchasing a fixed level of UIM recovery arrived at by combining payments from all sources. See Schmitz, 2002 WI 98 at ¶ 75. Thus, the reducing clause's effect is not crystal clear within the context of the whole policy. See id. at ¶¶ 46, 75. Accordingly, the UIM provisions are ambiguous and must be construed against West Bend and in favor of coverage. We therefore affirm the decision of the trial court declaring the reducing clause unenforceable and requiring West Bend to pay the Dowhowers the full $50,000 guaranteed in the policy.

By the Court. — Judgment affirmed.

       A motion for stay was granted on January 8, 2002, pending á decision by the supreme court in Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223; a motion to file supplemental briefs was granted on August 5, 2002.

       The facts of the case are taken primarily from the supreme court decision, Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, 236 Wis. 2d 113, 613 N.W.2d 557 (Dowhower I).

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

       While the supreme court remanded to the trial court the issue of whether, within the context of the West Bend policy, the reducing clause is ambiguous, in her concurrence, Justice Ann Walsh Bradley addressed the issue. See Dowhower I, 2000 WI 73 at ¶ 37 (Bradley, J., concurring). We agree with her analysis of the West Bend policy and apply much of it here.

       In its brief, West Bend creates a hypothetical scenario in which they claim the full $50,000 could be paid. West Bend argues that if Dustin Dowhower were injured together with two other injury claimants who „had no UIM coverage and the tortfeasor had a $25,000/$50,000 liability policy available, the two injury claimants without UIM coverage could collect the $25,000/$50,000 policy of the tortfeasor, leaving Dowhower to recover the maximum $50,000 policy limit from West Bend. However, the Dowhowers claim that such a result is contrary to Wisconsin law. Thus, even this scenario is subject to dispute.


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Steven G. Walters, Defendant-Appellant.
    Court of Appeals

      No. 01-1916-CR.

      Submitted on briefs November 27, 2002.

      Decided January 15, 2003.

    2003 WI App 24
    (Also reported in 659 N.W.2d 151.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jenelle L. Glasbrenner and David A. Danz of Law Offices of Danz, Lettenberger & Glasbrenner, S.C., Delavan.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Marguerite M. Moeller, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review filed.

   SNYDER, J.

¶ 1. Steven G. Walters appeals from a judgment of conviction for three counts -of first-degree sexual assault of a child. Walters argues that the trial court erroneously granted the State's request to exclude defense expert testimony regarding witness suggestibility and proper interrogation techniques. We disagree and affirm.

¶ 2. Walters further argues that the trial court erroneously granted the State's request to exclude defense expert testimony regarding character and profile testimony as allowed by State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998). We agree that the trial court erred in denying Walters's request to present Richard A.E evidence and we therefore reverse on this issue and remand for a new trial.

FACTS

¶ 3. On December 28, 1998, Walters was charged with three counts of first-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1) (1999-2000). Both Walters and the State filed discovery motions; the State's motion required the disclosure of all of Walters's witnesses intended to testify at trial, any reports or statements of experts or summaries of experts' findings made in connection with the case, and the results of any physical or mental examinations that Walters intended to offer at trial. Walters complied with the State's discovery request and notified the State via letter that he intended to call expert witnesses at trial. This notification stated, in relevant part:

As to a list of expert witnesses and witnesses, I can advise you of the following:
1. Dr. R. Underwager (Expert)
M.Div., Ph.D.,
Director and Licensed Psychologist
Institute for Psychological Therapies
13200 Cannon City Blvd.
Northfield MN 55057-4405
2. Dr. H. Wakefield, M.A. (Expert)
Licensed Psychologist
Institute for Psychological Therapies
12300 Cannon City Blvd.
Northfield MN 55057-4405

Walters indicated that the two experts would be prepared to testify as to "adult behaviors towards children and eliciting statements [and] the characteristics of child molesters" and indicated copies of the experts' reports and results of mental examinations would be forthcoming once completed.

¶ 4. The State then moved to exclude the testimony of Walters's proposed experts. In its motion to exclude testimony of defense experts regarding profile evidence, the State specifically asked the court "to prevent the defense from calling any expert witnesses to testify that [Walters] is less likely to have committed this sexual assault because of some psychological makeup." As grounds for this motion, the State argued "[t]he testimony of [Walters's] experts will not meet the requirement of State v. Richard A.P. . . . which the [S]tate believes was wrongly decided...." The State argued that the experts' testimony would invade the province of the jury and its probative value was outweighed by the prejudice to the State.

¶ 5. The State also moved to exclude defense expert testimony on children's memory and suggestibility "because it invades the province of the jury and is testimony commenting on the veracity of a witness." In addition, the State argued that the evidence was not relevant pursuant to Wis. Stat. ch. 904.

¶ 6. Circuit Court Judge John R. Race presided over three days of testimony during offer of proof hearings. Walters's first expert, Dr. Hollida Wakefield, testified that she had administered several psychological evaluations and an intelligence test to Walters. Dr. Wakefield testified that there are personality characteristics that are found more often in people who sexually offend than in the normal population and that she was prepared to testify about those personality characteristics, "[w]hat the types of problems, the types of personalities sex offenders are more likely to have, and that can be contrasted against what I found or compared in Mr. Walters." She also testified that she had assessed Walters's personality for the finder of fact. Furthermore, she testified that she was ready to testify regarding Walters's personality characteristics and those of known sex offenders but would not give any opinion on ultimate issues of fact, acknowledging that her testimony "doesn't prove something. It gives information for the trier of fact in weighing probabilities."

¶ 7. Dr. Ralph Charles Underwager, another of Walters's proposed experts, also testified at an offer of proof hearing. Dr. Underwager testified about his ability to render an opinion about the type of interviewing the officer used in questioning the alleged victims. Dr. Underwager testified that he would address the quality of the investigative techniques used in this case, indicating that police interviews of the victims failed "to conform to generally accepted guidelines on how to perform investigatory interviews in cases of alleged child abuse."

¶ 8. Walters argued that allowing the experts to make comparisons based on psychological characteristics commonly associated with individuals who commit sexual assault to his psychological characteristics was admissible under Richard A.P. and did not interfere with the role of the jury. Judge Race agreed and on December 20, 1999, held that "[w]hether or not the [Sjtate likes the Richard A.R case or not, it is still the law which I must follow" and denied both of the State's motions, allowing the testimony of Drs. Underwager and Wakefield.

¶ 9. Pursuant to the standardized judicial rotation in Walworth county, Judge Race was rotated out of felony court and was replaced by Circuit Court Judge James L. Carlson, who then became Walters's trial court judge.

¶ 10. Subsequently, on May 17, 2000, the State filed a motion to reconsider Judge Race's decision. In this motion, the State alleged that "Judge Race was mistaken when he stated that he must follow the holding in Richard A.E" and "[o]bviously Richard A.R is a wrong decision and contrary to precedent nation wide."

¶ 11. Over Walters's objections, Judge Carlson conducted hearings on the State's motion for reconsideration and ordered Walters to present a synopsis of the offer of proof testimony. During both reconsideration hearings, Judge Carlson made reference to another, wholly unrelated, Walworth county sexual assault case. Specifically, at the November 8, 2000 hearing, Judge Carlson stated, "I heard. . . lengthy testimony that these witnesses gave" when, in fact, Judge Carlson had not heard any testimony in Walters's case at that point. Judge Carlson eventually acknowledged that he was referring to testimony in this other unrelated case.

¶ 12. On November 17, 2000, Judge Carlson granted, without written explanation, the State's motion to reconsider, reversing Judge Race's previous decision. Walters filed a motion for an interlocutory appeal, which was denied. Walters was convicted after a jury trial of all three counts of sexual assault of a child on January 23, 2001. Walters appeals.

DISCUSSION

¶ 13. Walters first argues, relying on our decision in Richard A.P., 223 Wis. 2d at 777, that Judge Carlson erred when he granted the State's motion for reconsideration and prohibited him from offering expert testimony regarding profile and personality characteristic evidence. We agree.

¶ 14. The admissibility of expert testimony is committed to the discretion of the trial court. State v. Friedrich, 135 Wis. 2d 1, 15, 398 N.W.2d 763 (1987). We uphold discretionary decisions of the trial court so long as it considered the relevant facts, applied a correct standard of law and arrived at a reasonable result through a rational thought process. State v. Peters, 192 Wis. 2d 674, 685, 534 N.W.2d 867 (Ct. App. 1995). The discretion to admit or exclude Richard A.P. evidence remains with the trial court. State v. Davis, 2002 WI 75, ¶ 15, 254 Wis. 2d 1, 645 N.W.2d 913, reconsideration denied, 2002 WI 121, 257 Wis. 2d 123, 653 N.W.2d 894 (Wis. Sept. 20, 2002) (No. 00-2916-CR).

¶ 15. In Richard A.P., the defendant sought the admission of expert testimony to demonstrate that he did not exhibit character traits consistent with a sexual disorder such as pedophilia. Richard A.P., 223 Wis. 2d at 795. We concluded that this evidence was both relevant and admissible under Wis. Stat. § 907.02, the general rule governing expert testimony, and Wis. Stat. § 904.04(l)(a), the specific statute governing character testimony. Richard A.P., 223 Wis. 2d at 795. Richard A.P evidence is defined as evidence introduced by a defendant to show that he or she lacked the psychological characteristics of a sex offender and therefore was unlikely to have committed the charged crime. Davis, 2002 WI 75 at ¶ 1.

¶ 16. In the case at hand, the State argued before the trial court that it was not obligated to follow the holding of Richard A.P. because Richard A.P. was an "[ojbviously. . . wrong decision and contrary to precedent nation wide." Upon appeal, the State wisely changes tactics. The State now acknowledges the validity of Richard A.P., as recently affirmed in Davis, but argues that the trial court here properly determined that otherwise relevant evidence is subject to exclusion under Wis. Stat. § 904.03 if its probative value is substantially outweighed by the danger of unfair prejudice and that such expert testimony is not needed to assist the jury. However, while the trial court did conduct a relevancy analysis, the analysis was colored by the trial court's belief that Richard A.P. was seriously limited as authority and that other jurisdictions have held such evidence to be inadmissible.

¶ 17. Thus while we agree with the State that Davis applies to the case at hand, we conclude that Davis compels a different result here than the one arrived at by the trial court.

¶ 18. The Davis court held that "[t]he rules on character evidence and expert testimony allow for the admissibility of Richard A.P. evidence" because under Wis. Stat. § 904.04(1)(a), a defendant may introduce "pertinent traits" of his or her character as evidence. Davis, 2002 WI 75 at ¶ 16. Thus, like all admissible evidence, character evidence must be relevant to the facts at issue. Id. Relevancy has two components: (1) the evidence must relate to a fact or proposition that is of consequence to the determination of the action, and (2) the evidence must have probative value. Id. A defendant may introduce such relevant character evidence through opinion testimony. Id.

¶ 19. The Davis court recognized that Wisconsin has traditionally provided broad admissibility to expert testimony, which is permitted when specialized knowledge will assist the trier of fact. Id. at ¶¶ 17,19; see also Wis. Stat. § 907.02. Again, relevancy is an essential requirement for the admissibility of expert testimony and depends upon the qualifications of the expert and the usefulness of the testimony to the trier of fact. Davis, 2002 WI 75 at ¶ 17.

¶ 20. The supreme court held that such traits regarding the defendant's propensity to commit sexual assault are pertinent traits of the defendant's character and relate to a consequential fact, i.e., whether the defendant committed sexual misconduct with a child. Id. at ¶ 18. In addition, the Davis court concluded, this evidence has probative value in sexual assault cases where there is often no neutral witness to the assault and there is seldom any physical evidence implicating the defendant. Id. Such profile evidence may be extremely important to the defendant and may also be useful to the trier of fact, helping it to determine a fact in issue, that is, whether the defendant committed the crime, by showing circumstantial evidence of the defendant's innocence. Id. This type of evidence must be presented through expert testimony due to the specialized nature of the character profiles. Id. at ¶ 19.

¶ 21. In Davis, the Wisconsin Supreme Court expressly declined the State's request to overturn Richard A.P. The court unequivocally stated that Richard A.P. evidence is admissible at trial pursuant to the statutes governing both character evidence and expert testimony and instructed trial courts to closely scrutinize such evidence for its relevancy, probative value and potential for danger of unfair prejudice or confusion to the jury. Davis, 2002 WI 75 at ¶¶ 1-2, ¶¶ 14-15.

¶ 22. The offer of proof in Davis is nearly identical to the offer of proof presented here. In Davis, the defendant sought to introduce expert testimony that he did not exhibit character traits consistent with a sexual disorder and that because he did not possess such traits, he would have been unlikely to have committed a sexual assault. Id. at ¶ 5. The expert also would have testified to the data upon which his opinion was based. Id. Specifically, Davis's expert would have testified to the general character traits of sex offenders, the tests used to determine whether an individual possesses such character traits, the expert's findings on whether Davis possessed said character traits,, and the likelihood that Davis committed the sexual assault. Id. at ¶ 18.

¶ 23. Here, Dr. Wakefield testified that she had administered several psychological evaluations and an intelligence test to Walters. Dr. Wakefield testified that there are personality characteristics that are found more often in people who sexually offend than in the normal population and that she was prepared to testify about those personality characteristics, "[w]hat the types of problems, the types of personalities sex offenders are more likely to have, and that can be contrasted against what I found or compared in Mr. Walters." She also testified that she had assessed Walters's personality for the finder of fact. Furthermore, she testified that she was ready to testify regarding Walters's personality characteristics and those of known sex offenders.

¶ 24. Walters's proffered evidence from Dr. Wake-field was relevant in that whether or not he possessed traits indicating a propensity to commit sexual assaults relates to a consequential fact, i.e., whether Walters committed sexual misconduct with a child. See id. This evidence has probative value here and is not outweighed by any possible danger of unfair prejudice. See id. This evidence .must be presented through expert testimony due to its specialized nature. See id. at ¶ 19. The trial court did not apply the proper legal standard and therefore erred in prohibiting Walters from presenting his Richard A.P. evidence.

¶ 25. We cannot ignore the arguments offered by the State at the trial court level at both the motion to exclude before Judge Race and the motion for reconsideration before Judge Carlson. We are troubled by the district attorney's arguments that a trial court is free to ignore published decisions of the court of appeals. Walworth County District Attorney Phillip Koss argued on numerous occasions, and the trial court implicitly agreed, that Richard A.P. was "obviously" wrongly decided and need not be followed. While the district attorney may think that Richard A.P. was an "obviously" wrong decision and contrary to nationwide precedent, it is the law. Our supreme court has upheld the tenets of Richard A.P. in Davis.

¶ 26. Officially published opinions of the court of appeals have statewide precedential effect. Wis. Stat. §§ 752.41(2), 809.23; see also Cook v. Cook, 208 Wis. 2d 166, 186, 560 N.W.2d 246 (1997). Lower courts are bound by the precedent of our published decisions and the decisions of the Wisconsin Supreme Court, whether the lower courts agree with the law or not. A district attorney who may disagree with the law is still obligated to follow it.

¶ 27. Walters also argues that Judge Carlson erred when he granted the State's motion for reconsideration and excluded expert testimony on memory and suggestibility, specifically on the proper protocol for interviewing a child witness. We disagree with this contention.

¶ 28. Again, the admissibility of expert testimony is committed to the discretion of the trial court. Friedrich, 135 Wis. 2d at 15. At the offer of proof hearing, Walters's proposed expert, Dr. Underwager, testified about his ability to render an opinion about the type of interviewing the officer used in questioning the alleged victims. Dr. Underwager testified that he would address the quality of the investigative techniques used in this case, indicating that police interviews of the victims failed "to conform to generally accepted guidelines on how to perform investigatory interviews in cases of alleged child abuse."

¶ 29. The trial court properly exercised its discretion in granting the State's motion to exclude Dr. Underwager's testimony. In doing so, the trial court provided three bases. First, the trial court found that the majority of Dr. Underwager's testimony would cover matters within the knowledge and general experience of the community which would not require expert testimony. In addition, the trial court found that Dr. Underwager's proffered testimony would not have highlighted specific examples of improper techniques used by the police nor explained how these techniques could have affected the children's statements. Finally, the trial court concluded that because the State was planning on using live witnesses and would not rely on the children's statements to police, evidence regarding the interviewing techniques would be, at best, minimally relevant. On this issue, the trial court considered the relevant facts, applied a correct standard of law and arrived at a reasonable result through a rational thought process and we affirm. See Peters, 192 Wis. 2d at 685.

CONCLUSION

¶ 30. While we affirm the trial court's decision to exclude defense expert testimony regarding witness suggestibility and proper interrogation techniques, we conclude that the trial court applied the wrong legal standard in its decision to preclude defense expert testimony regarding character and profile evidence. This evidence is allowed pursuant to Richard A.P. and Davis and is both relevant and admissible. We therefore reverse the judgment of conviction and remand this matter to the trial court for a new trial where Walters is allowed to present his Richard A.P. evidence.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

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


text:
    Raymond J. Topps and Deborah J. Topps, Plaintiffs-Appellants, v. County of Walworth, Wisconsin, a municipal corporation, and Kathleen M. DuBois, Walworth County Treasurer, Defendants, Thomas G. Martin, W Ryan Zenk and Fieldview, LLC, Defendants-Respondents.
    Court of Appeals

      No. 02-0653.

      Oral argument December 13, 2002.

    Decided January 15, 2003.

    2003 WI App 30
    (Also reported in 659 N.W.2d 177.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of and oral argument by David C. Williams of Allen, Harrison, Williams, McDonell & Swatek, LLP, Lake Geneva.
    On behalf of the defendants-respondents Thomas G. Martin and W Ryan Zenk, the cause was submitted on the brief of Lisle W. Blackbourn and Michael J. Frazier
      of Godfrey, Leibsle, Blackbourn & Howarth, S.C., Elkhorn. There were oral arguments by Michael J. Frazier.

    On behalf of the defendant-respondent Fieldview, LLC, the cause was submitted on the brief of Penny G. Gentges and Arthur M. Moglowsky of Bass & Moglowsky, S.C., Milwaukee. There were oral arguments by Penny G. Gentges.

    Before Nettesheim, EJ., Brown and Snyder, JJ.
   SNYDER, J.

¶ 1. Raymond J. Topps and Deborah J. Topps (Toppses) appeal from a judgment and orders dismissing their action against Thomas G. Martin and W Ryan Zenk (Martin/Zenk) and Fieldview, LLC. Wal-worth County purported to foreclose on the Toppses' property, pursuant to Wis. Stat. § 75.521 (1999-2000), after which the County sold the property to Martin/Zenk, who subsequently sold the property to Fieldview. The Toppses filed this declaratory judgment action asking the circuit court to declare the foreclosure judgment void and return the property to them because of the County's alleged failure to follow numerous procedural requirements of § 75.521. Martin/Zenk and Fieldview filed motions to dismiss the action against them, alleging, among other things, that the Toppses' exclusive remedy was under § 75.521(14a) for money damages against the County. The circuit court agreed.

¶ 2. The Toppses argue that the circuit court erroneously granted Martin/Zenk's and Fieldview's motions to dismiss them from this declaratory judgment action because Wis. Stat. § 75.521(14a)'s remedy is not available to them at all, much less as an exclusive remedy. We agree and reverse the judgment and orders dismissing Martin/Zenk and Fieldview from this action.

FACTS

¶ 3. Since the issue on appeal is whether the circuit court properly granted Martin/Zenk's and Fieldview's motions to dismiss the Toppses' amended complaint, we are required to limit our review to the facts alleged in the complaint and we must assume those facts to be true. See Lane v. Sharp Packaging Sys., Inc., 2001 WI App 250, ¶ 6, 248 Wis. 2d 380, 635 N.W.2d 896, review denied, 2002 WI 48, 252 Wis. 2d 150, 644 N.W.2d 686 (Wis. Apr. 22, 2002) (No. 01-0708). Whether those alleged facts can withstand the rigors of a trial has yet to be determined.

¶ 4. In October 1996, the Toppses, residents of Chicago, Illinois, purchased certain real estate in Wal-worth county. At that time, all real estate taxes through 1995 had been paid. Because the Toppses disagreed with the assessment on their property, they failed to pay the real estate taxes in part or in full starting in 1996. The total amount of delinquent taxes due and owing on the property is less than $10,000. In the year 2000, pursuant to Wis. Stat. § 75.521, the County purported to foreclose on the Toppses' property to recover 1996 real estate taxes in the sum of $918.89. However, the County failed to publish the petition to the court as required by § 75.521(6) and failed to mail a copy of said petition to the Toppses or to the mortgagee of the property as required by § 75.521(3)(c). Furthermore, the County failed to include a description of the Toppses' property in the list of tax liens required to be filed in the clerk's office, contrary to the requirements of § 75.521(3)(am)l. In addition, on September 7, 1999, the County informed the Toppses, via a notice of issuance of tax certificate for tax roll of 1998, that the Toppses had until September 1, 2001, to pay the delinquent taxes before the property would transfer to the County. Finally, the County failed to timely publish the redemption notice required by Wis. Stat. § 75.07.

¶ 5. On January 12, 2001, a second amended judgment of foreclosure on the property was entered. On January 29, 2001, the County issued a quitclaim deed for said property to Martin/Zenk, as tenants in common. The County failed to obtain an appraisal of the property prior to the sale, contrary to Wis. Stat. § 75.69, and sold it to Martin/Zenk for significantly less than the fair market value. On July 18, 2001, Martin/Zenk executed a warranty deed to the subject real estate to Fieldview. The Toppses had no notice or knowledge that the property had been acquired by the County until July 2001 when, while driving past the property, they noticed a sign on the property listing it for sale with Martin listed as the realtor.

¶ 6. On August 10, 2001, the Toppses filed a declaratory judgment action against the County and Martin/Zenk, asking the circuit court to declare the purported tax foreclosure proceedings by which the County and Martin/Zenk took title void for failure to comply with the provisions of Wis. Stat. § 75.521 and other provisions in the Wisconsin Statutes, as well as the United States and Wisconsin Constitutions. The Toppses claimed that both the County and Martin/Zenk would be unjustly enriched if the tax foreclosure sale was not vacated and asked the court to declare the Toppses to be the true owners of the real estate in question. An amended summons and complaint, containing the same allegations but adding Fieldview as a defendant, were filed on August 27, 2001.

¶ 7. The County, Martin/Zenk and Fieldview all filed answers to the complaint, alleging affirmative defenses. On January 7, 2002, Martin/Zenk filed a cross-claim against the County, claiming that if the foreclosure proceeding against the Toppses was void, Martin/Zenk did not have marketable title to the property and would therefore have suffered damages in defending the Toppses' action and may incur liability to Fieldview. Martin/Zenk asked for full indemnification from the County.

¶ 8. That same day, Martin/Zenk filed a motion to dismiss the Toppses' action against them. Martin/Zenk alleged that they did not have any present interest in the property nor any involvement in the asserted procedural irregularities in the foreclosure action. Martin/Zenk asked the court to dismiss the claim against them because it did not state a cause of action against them and the Toppses' remedy for any procedural irregularities was the exclusive remedy provided in Wis. Stat. § 75.521(14a). On January 15, 2002, Field-view also filed a motion to dismiss, alleging that the complaint failed to state a claim against it, that claim preclusion prevented the Toppses from relitigating this issue and that the Toppses' exclusive remedy was that provided in § 75.521(14a).

¶ 9. On February 14, 2002, the circuit court dismissed the action against Martin/Zenk, concluding that "[t]he comprehensive remedy available to [the Toppses] under Wis. Stat. § 75.521(14a) ... is [the Toppses'] exclusive remedy in this action, and provides only for damages against the County of Walworth. The Amended Complaint, therefore, fails to state a claim upon which relief can be granted against Defendants Martin and Zenk"; judgment was entered accordingly. In a separate order, the circuit court dismissed the action against Fieldview on the same grounds. The Toppses appeal.

DISCUSSION

¶ 10. The Toppses argue that on the face of Wis. Stat. § 75.521(14a), the remedy of monetary damages against the County is not available as a remedy in this case, much less an exclusive remedy. The Toppses further claim that case law makes the remedy for the County's failure to comply with statutory foreclosure requirements a declaration that the tax foreclosure action is void. We agree.

¶ 11. As a question of law, we review the trial court's decision independently. Montalvo v. Borkovec, 2002 WI App 147, ¶ 8, 256 Wis. 2d 472, 647 N.W.2d 413, review denied, 2002 WI 121, 257 Wis. 2d 118, 653 N.W.2d 890 (Wis. Sept. 26, 2002) (No. 01-1933), petition for cert, filed, 71 U.S.L.W 3444 (U.S. Dec. 26, 2002) (No. 02-997). We will affirm a judgment dismissing a complaint for failure to state a claim only if, upon review of the complaint, as liberally construed, it is quite clear that under no conditions can the plaintiff recover based upon the facts alleged and inferences reasonably drawn. Id.

¶ 12. This case involves the interpretation of Wis. Stat. § 75.521. Interpretation of a statute is subject to de novo review. State v. Hughes, 218 Wis. 2d 538, 543, 582 N.W.2d 49 (Ct. App. 1998). However, the trial court's findings of fact are reviewed under the clearly erroneous standard. Flejter v. Estate of Flejter, 2001 WI App 26, ¶ 34, 240 Wis. 2d 401, 623 N.W.2d 552.

¶ 13. Wisconsin Stat. § 75.521 addresses foreclosure of tax liens by actions in rem. The specific provision in question is § 75.521(14a), which states as follows:

(14a) Damages. Any person who was the owner of any right, title or interest in land which was lost by judgment of foreclosure as provided in this section may within 2 years from the date of entry of such judgment, in the cases hereinafter mentioned other than fraud and within 6 years in the case of fraud, commence an action in the circuit court against the county to recover the fair market value of the person's interest therein at the date of entry of said judgment of foreclosure in rem. If the court determines that such person's right, title and interest in said land was unjustly foreclosed and lost because said person's interest in such lands was not subject to taxation, special assessment, special charge or special tax at the time of the levy of the tax, assessment or charge, for nonpayment of which said lands were foreclosed, or that in fact such tax, special assessment, special charge or special tax was paid by said owner, or that the tax lien upon which the judgment of foreclosure in rem was based was barred by the statute of limitations, or if such person lost said property through fraud without fault on his or her part, the court shall determine the fair market value of said land or of said person's interest therein as hereinabove set forth. The fair market value shall not exceed the amount arrived at by dividing the assessed valuation of such lands in the year in which such judgment in rem was entered by the percentage ratio of real estate assessments prevailing for the taxing district in which the lands were located as set forth in the equalization for state tax purposes of the same year. The court shall award judgment to such plaintiff in such amount, together with reasonable attorney fees to be fixed by the court, and the plaintiffs costs and disbursements of such action. The amount awarded the plaintiff shall be reduced by the total amount due, as of the date of entry of such judgment, for all current taxes and upon all tax certificates held by the county on such date that the court shall find were valid. Upon payment of the judgment the county may charge back as a tax to any taxing district the amount which such district received from the county in payment of taxes and interest on said land either by distribution of proceeds of sale thereof by the county or through other payment by the county to the extent that it exceeds the amount distributable to such district had the same been based upon the payment of the taxes and interest found by the court to be properly payable at the time of the entry of the judgment of foreclosure and applied in reduction of the amount awarded to the plaintiff hereunder. (Emphasis added.)

¶ 14. Our goal in interpreting a statute is to determine and give effect to the intent of the legislature. Dotty Dumpling's Dowry, Ltd. v. Cmty. Dev. Auth. of City of Madison, 2002 WI App 200, ¶ 8, 257 Wis. 2d 377, 651 N.W.2d 1, review denied, 2002 WI 121, 257 Wis. 2d 118, 653 N.W.2d 890 (Wis. Oct. 21, 2002) (No. 01-1913). Where the language chosen by the legislature is clear and unambiguous, we give "the language its plain, ordinary and accepted meaning." Id. (citation omitted).

¶ 15. The plain language of the statute indicates that "[a]ny person who was the owner of any right, title or interest in land which was lost by judgment of foreclosure as provided in this section" may commence an action to recover the fair market value of the person's interest therein. Wis. Stat. § 75.521(14a). According to the amended complaint, the County only purported to foreclose on the Toppses1 property as provided in § 75.521. According to the amended complaint, the County never validly foreclosed on the property as provided in § 75.521. Because the provisions of 75.521 were not followed, the remedies of § 75.521 were not available.

¶ 16. Furthermore, in order to recover money damages for the fair market value from the County under this statutory section, a landowner must establish that his or her right, title and interest in the land was "unjustly foreclosed and lost" due to one of the four following reasons:

1. because the person's interest in said land was not subject to taxation, special assessment, special charge or special tax at the time of the levy of the tax, assessment or charge for nonpayment of which said lands were foreclosed; or
2. that such tax, special assessment, special charge or special tax was, in fact, paid by said owner; or
3. that the tax lien upon which the judgment of foreclosure in rem was based was barred by the statute of limitations; or
4. if the owner lost his or her property through fraud, without fault on his or her part.

Wis. Stat. § 75.521(14a). The amended complaint did not allege any of the four limited circumstances which give rise to the remedy available in § 75.521. Thus, the remedy of § 75.521 is not available to the Toppses.

¶ 17. We conclude that the appropriate remedy is set forth in Waukesha County v. Young, 106 Wis. 2d 244, 316 N.W.2d 362 (1982). In Young, a land contract vendor was not provided notice of a Wis. Stat. § 75.521 foreclosure action against her property; after foreclosure judgment was granted, Waukesha county conveyed the property by quitclaim deed to a third party. Young, 106 Wis. 2d at 246-47. Young, the land contract vendee, sought to vacate the foreclosure judgment, arguing that the county had failed to follow numerous notice provisions of § 75.521. Young, 106 Wis. 2d at 247-48. The trial court dismissed Young's motion to vacate the default judgment and we affirmed. Id. at 248-49. The Wisconsin Supreme Court disagreed and reversed.

¶ 18. The Young court held that Wis. Stat. § 75.521 statutory requirements must be strictly complied with in proceedings to obtain a tax deed. Young, 106 Wis. 2d at 251. A tax deed is not derivative but creates a new title in the nature of an independent grant from the sovereignty, extinguishing all former titles and liens not expressly exempted from its operation. Id.

¶ 19. The taking of land by the government from an individual for failure to pay taxes on the land is a very drastic measure and unless the statutory procedures are strictly complied with, a court has no jurisdiction to render such a foreclosure judgment. Id. at 249. Absent strict compliance with the statute, it would violate due process to allow such a governmental taking. Id. at 251. The County's failure to fully comply with the statute renders the foreclosure judgment void. Id. at 250. Here, the amended complaint alleges numerous failures on the part of the County to fully comply with Wis. Stat. § 75.521.. If true, these failures would render the foreclosure judgment void, thereby making the transfers to Martin/Zenk, and the subsequent transfer to Fieldview, equally void. The circuit court erred in concluding that. § 75.521(14a) was the exclusive remedy available to the Toppses and thereby dismissing Martin/Zenk and Fieldview from this action.

CONCLUSION

¶ 20. Wisconsin Stat. § 75.521(14a) is not the exclusive remedy available to the Toppses; in fact, § 75.521(14a) is not a remedy available at all to the Toppses. If the allegations in the amended complaint prove to be true, that the County failed to strictly follow the mandates of § 75.521, to avoid any due process violations the only appropriate remedy is to declare the foreclosure action and judgment void. We therefore reverse the foreclosure judgment and orders of the circuit court dismissing Martin/Zenk and Fieldview.

By the Court. — Judgment and orders reversed and cause remanded.

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

       The County remains a part of this action, having filed an answer to the Toppses' claim and Martin/Zenk's cross-claim, but did not participate in this appeal.

       Fieldview contends that reason four, property loss through fraud, applies in that the County obtained the foreclosure judgment against the Toppses by fraudulently representing to the circuit court that it had complied with the statutory requirements. We are not persuaded. The Toppses' amended complaint does not raise the issue of fraud nor does the circuit court record address the issue.


author: LUNDSTEN, J.

text:
    Arthur T. Donaldson, Plaintiff-Respondent, v. Board of Commissioners of Rock-Koshkonong Lake District, Defendant-Appellant.
    Court of Appeals

      No. 01-3396.

      Submitted on briefs May 13, 2002.

    Decided January 16, 2003.

    2003 WI App 26
    (Also reported in 659 N.W.2d 66.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William P. O'Connor and Mary Beth Peranteau of Wheeler, Van Sickle & Anderson, S.C., Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David C. Moore of Nowlan & Mouat, LLP, Janesville.

      Before Vergeront, EJ., Deininger and Lundsten, JJ.

       Petition to review granted.

   LUNDSTEN, J.

¶ 1. The Board of Commissioners of the Rock-Koshkonong Lake District (Lake District Board) appeals a judgment by the circuit court reversing the Lake District Board's decision to deny Donaldson's petition to detach his land from the Rock-Koshkonong Lake District (Lake District). The Lake District Board argues that Donaldson's failure to demonstrate a change in circumstance relating to his property precludes detachment of his property from the Lake District. We agree that the Board properly denied detachment because Donaldson failed to demonstrate a change in circumstance. Accordingly, we reverse the judgment of the circuit court.

Background

¶ 2. On June 10, 1999, after a public hearing, the Rock County Board of Supervisors created the Lake District. The Lake District constitutes a public inland lake protection and rehabilitation district under Wis. Stat. § 33.21 et seq. (1999-2000). In creating the Lake District, the county board found that "[t]he property included in the district will be benefited by the district's establishment." The Lake District is managed by the Lake District Board. Donaldson owns two parcels of land in the Lake District.

¶ 3. About a year and a half after the creation of the Lake District, Donaldson petitioned the Lake District Board for detachment of his properties pursuant to Wis. Stat. § 33.33(3). The Lake District Board held a public hearing on Donaldson's petition. At the hearing, Donaldson testified that there had been no change in circumstance relating to his property since the time the county board created the Lake District, but also presented evidence that his properties did not benefit from inclusion in the District. On March 13, 2001, the Lake District Board denied the petition finding, among other things, that there was no evidence that the circumstance of Donaldson's property had changed.

¶ 4. Donaldson sought judicial review by filing a summons and complaint with the circuit court. The circuit court granted judgment in favor of Donaldson directing that Donaldson's properties be detached from the Lake District.

Discussion

¶ 5. Before addressing the parties' arguments, we provide context by setting forth the procedure by which a county board may create a lake district and the procedure to detach property from a lake district. The creation of a lake district is initiated by the preparation of a petition requesting its establishment and indicating its proposed boundaries. Wis. Stat. § 33.25(1) and (2)(d). If at least fifty-one percent of the landowners in the proposed district sign the petition, the county board must hold a hearing within thirty days, appoint a committee to conduct the hearing, notify by mail all landowners in the proposed district of the hearing, and publish a notice of the hearing in a paper of general circulation in the proposed district. Wis. Stat. §§ 33.26(1) and (2), 33.25U).

¶ 6. Prior to the date set for the hearing, "[a]ny person wishing to object to the organization of such district may . . . file objections to the formation of such district with the county clerk." Wis. Stat. § 33.26(1). When the hearing is held, "all interested persons may offer objections, criticisms or suggestions as to the necessity of the proposed district as outlined and to the question of whether their property will be benefited by the establishment of such district." Id.

¶ 7. The county board must consider the committee's report and "any other evidence submitted to the board." Wis. Stat. § 33.26(3). The statute specifies the findings the county board must make in order to create a lake district. The board must find that:

(1) "the petition is signed by the requisite owners as provided in s. 33.25,"
(2) "the proposed district is necessary,"
(3) "the public health, comfort, convenience, necessity or public welfare will be promoted by the establishment of the district,"
(4) "the property to be included in the district will be benefited by the establishment thereof," and
(5) "formation of the proposed district will not cause or contribute to long-range environmental pollution as defined in s. 299.01 (4)."

Id. If these findings are made, the county board "by order, shall declare its findings, shall establish the boundaries and shall declare the district organized and give it a corporate name by which it shall be known." Id. The county board must also create a lake district board to govern the district. Wis. Stat. § 33.27.

¶ 8. Pursuant to Wis. Stat. § 33.26(7), persons aggrieved by the county board's decision to create a lake district may petition the circuit court for judicial review by submitting a verified petition, within thirty days, that specifies the grounds upon which the appeal is based.

¶ 9. Wisconsin Stat. § 33.33(3) provides a mechanism for detachmént. Under that statute, landowners may petition the board of commissioners to detach their land from the district. Land may be detached from the district if the board of commissioners finds that the land "is not benefited by continued inclusion in the district." Id. Landowners who disagree with the board of commissioners' ruling may petition the circuit court for judicial review, pursuant to the same procedure used to appeal the county board's initial decision to create or not create the lake district in Wis. Stat. § 33.26(7). Wis. Stat. § 33.33(3).

¶ 10. Because the parties agree that an action under Wis. Stat. § 33.26(7) seeking judicial review is an action in certiorari, the standard of review we employ is not in dispute. As in Nielsen v. Waukesha County Board of Supervisors, 178 Wis. 2d 498, 504 N.W.2d 621 (Ct. App. 1993), we do not determine whether the statute's "failure to speak in certiorari terms might make the scope of judicial review different than that contemplated by statutory certiorari" and we "conduct our review under statutory certiorari principles because that is the manner in which the parties brought the case to the trial court and further bring the matter to us." Id. at 510-11. That standard is as follows:

When reviewing a decision by statutory certiorari, we accord a presumption of correctness and validity to the decision of the board or agency. Our inquiry is limited to whether: (1) the board kept within its jurisdiction; (2) the board proceeded on a correct theory of law; (3) the board's action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) the evidence was such that the board might reasonably make the order or determination in question.

Id. at 511 (citations omitted). Because we conclude that item (2) above — whether the Lake District Board's denial was based on a correct theory of law — is disposi-tive, we need not address the other three factors.

¶ 11. When creating a lake district, a county board must, among other things, find "that the property to be included in the district will be benefited by the establishment thereof." Wis. Stat. § 33.26(3) (emphasis supplied). After the creation of a lake district, a property owner may seek detachment. The standard for detachment is found in Wis. Stat. § 33.33(3): "Proposals for detachment shall be considered by the commissioners, and territory may be detached upon a finding that such territory is not benefited by continued inclusion in the district." (Emphasis supplied.)

¶ 12. The parties dispute whether the term "benefited" has the same meaning in both the lake district creation statute, Wis. Stat. § 33.26(3), and the detachment statute, Wis. Stat. § 33.33(3). The Lake District Board reasons that Donaldson's opportunity to challenge whether his property was properly included in the District is governed by § 33.26, and because Donaldson failed to avail himself of that opportunity, he must now demonstrate a change in circumstance showing he is no longer "benefited," using the same definition of "benefited" used by the county board when the Lake District was created. Therefore, the Lake District Board argues, it followed a correct theory of law by concluding that Donaldson cannot detach his property because he failed to demonstrate a change in circumstance. Donaldson contends that the Lake District Board misapplied the law because the word "benefited" in the detachment statute has a different meaning than in the lake district creation statute and he did not have to show a change in circumstance. Since there is agreement that Donaldson did not demonstrate a change in circumstance, the resolution of this dispute hinges on whether "benefited" in § 33.26(3) has the same meaning as "benefited" in § 33.33(3). We conclude that it does.

¶ 13. The proper construction of a statute is a question of law, which we review without deference to the circuit court. DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). We find guidance in the following rule of statutory construction: words appearing multiple times in the same statute are given the same meaning unless the context clearly requires a different meaning. State v. Polashek, 2001 WI App 130, ¶ 25, 246 Wis. 2d 627, 630 N.W.2d 545, rev'd on other grounds, 2002 WI 74, 253 Wis. 2d 527, 646 N.W.2d 330; Wilson v. Waukesha County, 157 Wis. 2d 790, 796, 460 N.W.;2d 830 (Ct. App. 1990). The reasoning behind this rule applies with full force to the statutes before us. Although Wis. Stat. §§ 33.26 and 33.33 are not the "same statute," they are both in Subchapter IV of Chapter 33 entitled "Public Inland Lake Protection and Rehabilitation Districts." All statutes within this sub-chapter deal with the creation, operation, financing, alteration, and dissolution of such districts. Thus, Subchapter IV is the equivalent of a single statute and we will treat it as such for purposes of construing the word "benefit." It follows that the word "benefited" has the same meaning in both § 33.26(3) and § 33.33(3), unless the context clearly requires a different meaning.

¶ 14. Donaldson contends that Fort Howard Paper Co. v. Fox River Heights Sanitary District, 250 Wis. 145, 26 N.W.2d 661 (1947), compels the conclusion that "benefited" has different meanings in the lake district creation statute, Wis. Stat. § 33.26(3), and the detachment statute, Wis. Stat. § 33.33(3). The Fort Howard court construed language authorizing the creation of a sanitary district under Wis. Stat. § 60.303(3) (1945). The pertinent language examined in Fort Howard (that "the property to be included in the district will be benefited by the establishment thereof') is the same as language in § 33.26(3) authorizing the creation of a lake district. According to Donaldson, the court in Fort Howard held, in the context of the creation of a district, that the term "benefited" does not require that each parcel within the district be benefited. Rather, the question is whether "the property within the boundaries of the proposed district as a whole will, be benefited." Fort Howard, 250 Wis. at 152. Therefore, Donaldson reasons, challengers to the formation of both sanitation districts and lake districts cannot succeed by showing that the specific land they own in a proposed district will not benefit. Under Donaldson's interpretation of Fort Howard, parcel-specific benefit is only an issue in the context of detachment. Although isolated statements in Fort Howard could be read to support such a view, the entire decision reveals that "benefited" refers to all parcels of land within a proposed district at the time of formation.

¶ 15. That "benefited" at the time of formation applies to all parcels of land within a proposed district is evident from the following passage:

If the town board finds that the property within the boundaries of the proposed district as a whole will be benefited then the district is to be organized. For example, if some parcel of land was included in the proposed district which lay out of the watershed and could not be served by the proposed improvement, manifestly a property so situated could not be benefited. If all the property within the boundaries of the proposed district is in the watershed and the proposed improvement may serve it, then the property of the district as a whole is benefited and the town board if it makes the other necessary finding may organize the district.

Id. Stated differently, a finding that a district as a whole is "benefited" will stand unless some parcel in the district is not benefited by inclusion. This reading of Fort Howard is further supported by the subsequent discussion of the particular facts in that case and the supreme court's conclusion: "it appears from the undisputed evidence that the property of the plaintiff will be benefited." Id. at 157. If benefit to the individual parcel at issue in Fort Howard was irrelevant, the supreme court would not have explained why the parcel was benefited.

¶ 16. Donaldson argues that requiring a change in circumstance contravenes the language of Wis. Stat. § 33.33(3). That statute asks whether the property is "not benefited by continued inclusion in the district." In Donaldson's view, if the legislature had wanted to require a change in circumstance, then §33.33(3) would read: "no longer benefited by inclusion in the district." We disagree. Although the legislature could have used the phrase "no longer benefited," nothing about the phrase "not benefited by continued inclusion" suggests a different definition of "benefited" in the two statutes: § 33.26(3) and § 33.33(3).

¶ 17. Donaldson contends that using the same "benefited" standard in both statutes produces a harsh result plainly not intended by the legislature. Donaldson observes that landowners have only thirty days from the creation of a lake district to appeal the county board's decision. He argues this is unreasonable because a county board's initial decision to create a lake district may lack specific findings concerning a landowner's specific circumstances and, therefore, there is no pertinent record regarding the specific parcel for judicial review. Donaldson contends that "[o]nly by bringing a specific petition for detachment [would he be able to] create such a record in the context of a hearing about his land."

¶ 18. Donaldson's argument is based on the assumption that the initial creation of a lake district is based on broad policy determinations and not on determinations that individual parcels within the district will benefit from inclusion. Donaldson reasons that "benefited" has a general, non-parcel-specific meaning in the lake district creation statute, Wis. Stat. § 33.26(3), whereas "benefited" has a parcel-specific meaning in the detachment statute, Wis. Stat. § 33.33(3). Donaldson's argument is belied by the plain language of the statutes.

¶ 19. Under Wis. Stat. § 33.26(3), a county board must find that "the property to be included in the district will be benefited by the establishment thereof." This requirement necessarily extends to all properties within the district. Furthermore, property owners in the proposed district have the right to attend the hearing and "offer objections, criticisms or suggestions as ... to the question of whether [their] property will be benefited by the establishment of such district." Wis. Stat. § 33.26(1). If the record produced does not support a finding that a particular property is benefited by inclusion, then the owner of the property would presumably prevail in an action under § 33.26(7).

¶ 20. In effect, Donaldson is attempting to challenge the county board's decision that his property benefited from inclusion in the District by appealing to the Lake District Board. Donaldson's testimony before the Lake District Board is telling:

[LAKE DISTRICT BOARD]: [H]as anything changed since Rock County passed the resolution forming the lake district... or did they make a mistake back then when they formed this lake district?
MR. DONALDSON: I think they made a mistake back then because it was farm land when I bought it and I've owned it for a number of years and it's still farm land, but I don't intend to do anything else with it other than farm land.
[LAKE DISTRICT BOARD]: So there haven’t been any changes in the conditions of the property since then?
MR. DONALDSON: No.

Donaldson had an opportunity to challenge the initial inclusion of his property in the Lake District. Wisconsin Stat. § 33.26(7) is the exclusive means by which to challenge the county board's decision to create a lake district. See Ross v. Honey Lake Prot. & Rehab. Dist., 166 Wis. 2d 739, 746, 480 N.W.2d 795 (Ct. App. 1992) (holding that the remedy in § 33.26(7) provides the exclusive judicial remedy for actions challenging the creation of a lake district under Wis. Stat. § 33.24). Enabling landowners to challenge the county board's determination that their property is benefited by inclusion in the district by petitioning the board of commissioners under Wis. Stat. § 33.33(3) would effectively negate the timeline in § 33.26(7), thereby nullifying the legislature's intent to limit the time to challenge inclusion in the district.

¶ 21. Our review finds nothing in the text. of Subchapter IV suggesting that the word "benefited" has one meaning at the time of the creation of a lake district and a different meaning after creation. Because "benefited" has the same meaning in the detachment statute, Wis. Stat. § 33.33(3), that it has in the statute authorizing district creation, Wis. Stat. § 33.26(3), Donaldson's petition for detachment was properly denied on the basis that he failed to show a change in circumstance.

¶ 22. Therefore, we reverse the decision of the circuit court and remand for the entry of an order affirming the decision of the Lake District Board.

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

       The Lake District Board also complains that Donaldson did not file a properly verified complaint and that Donaldson's summons and complaint were insufficient to initiate an action in certiorari. Because we reverse on the merits, we need not decide these procedural issues.

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

       Wisconsin Stat. § 33.25 states, in relevant part:
      (1) ... (a) Before a county board may establish a district under s. 33.235 or 33.24, a petition requesting establishment shall be filed with the county clerk, addressed to the board and signed by persons constituting 51% of the landowners or the owners of 51% of the lands within the proposed district....

        (2) Contents. The petition shall set forth:
      (d) The boundaries of the territory to be included in the proposed district.

       Wisconsin Stat. § 33.26 states, in relevant part:
      (1) Upon receipt of the petition the county board shall arrange a hearing to be held not later than 30 days from the date of presentation of the petition, and shall appoint a committee to conduct the hearing. At the hearing all interested persons may offer objections, criticisms or suggestions as to the necessity of the proposed district as outlined and to the question of whether their property will be benefited by the establishment of such district. Any person wishing to object to the organization of such district may, before the date set for the hearing, file objections to the formation of such district with the county clerk.
      (2) Notice announcing the hearing and stating the boundaries of the proposed district shall be published in a paper of general circulation in the county in which the proposed district is located as a class 1 notice, under ch. 985, and shall be mailed by the county board to the last-known address of each landowner within the proposed district.
      (3) The committee shall report to the county board within 3 months after the date of the hearing. Within 6 months after the date of the hearing, the board shall issue its order under this subsection. If the board finds, after consideration of the committee's report and any other evidence submitted to the board, that the petition is signed by the requisite owners as provided in s. 33.25, that the proposed district is necessary, that the public health, comfort, convenience, necessity or public welfare will be promoted by the establishment of the district, that the property to be included in the district will be benefited by the establishment thereof, and that formation of the proposed district will not cause or contribute to long-range environmental pollution as defined in s. 299.01 (4), the board, by order, shall declare its findings, shall establish the boundaries and shall declare the district organized and give it a corporate name by which it shall be known. Thereupon the district shall be a body corporate with the powers of a municipal corporation for the purposes of carrying out this chapter. If the board does not so find, the board, by order, shall declare its findings and deny the petition.
      (7) Any person aggrieved by the action of the board may petition the circuit court for judicial review. A verified petition shall be presented to the court not more than 30 days after the decision of the board, and shall specify the grounds upon which the appeal is based.

       Wisconsin Stat. § 33.33(3) provides:
      Detachment. Territory may be detached from the district following petition of the owner or motion of the commissioners. Proposals for detachment shall be considered by the commissioners, and territory may be detached upon a finding that such territory is not benefited by continued inclusion in the district. Appeals of the commissioners' decision may be taken under s. 33.26 (7).

       We note that the circuit court addressed the issue in the context of summary judgment. We question whether summary judgment is appropriate in the context of a certiorari review. In any event, this action has been presented to this court in the form of a certiorari review, and we treat it as such.

       The parties do not discuss whether we should defer to any express or implicit construction of the statute by the Lake District Board. Because we employ a de novo standard, the standard most favorable to Donaldson, we need not address this question.

       The single exception in Subchapter IV does not undercut our analysis. Wisconsin Stat. § 33.235 authorizes the conversion of a sanitary district to a restructured district governed by Subchapter IV of Chapter 33. This provision simply permits a sanitary district to merge with a lake district or assume the duties of a lake district.

       The Lake District Board also found that Donaldson's property benefited from inclusion in the District. We need not address this finding because of our conclusion that Donaldson was required to show a change in circumstance and has failed to do so.