author: VERGERONT, EJ.

text:
    In re the Estate of Nickolas J. Persha, Deceased: Mary J. Gittel, Appellant-Cross-Respondent, v. Ruth M. Abram, Respondent-Cross-Appellant.

    Court of Appeals

      No. 01-1132.

      Submitted on briefs December 7, 2001. —
    Decided April 25, 2002.

    2002 WI App 113
    (Also reported in 649 N.W.2d 661.)

      On behalf of the appellant-cross-respondent, the cause was submitted on the briefs of Charles H. Barr of Croen & Barr LLP, Milwaukee, and Thomas C. Wilko-ski of Lucas & Wilkoski, West Allis.
    On behalf of the respondent-cross-appellant, the cause was submitted on the briefs of Christopher J. Blythe oí Lawton & Cates, S.C., Madison.
    Before Vergeront, PJ., Dykman and Lundsten, JJ.

       Petition to review denied 9-26-02.

   VERGERONT, EJ.

¶ 1. This appeal arises out of a contest over the will of Nickolas Persha. Ruth Abram, the only beneficiary under the will and the personal representative, sought to have the will admitted to probate. One of Persha's siblings, Mary Gittel, objected on the grounds that Persha lacked testamentary capacity to make a will and the will was the result of Abram's undue influence. The trial court ruled that Persha lacked testamentary capacity, Abram had failed to rebut the presumption of undue influence, and the will should not be admitted to probate, and it ordered Persha's estate to proceed intestate. Subsequently, the court rescinded that portion of its Decision and Order regarding undue influence and ordered that Abram's costs and attorney fees be reimbursed from the estate under Wis. Stat. §§ 879.35 and 879.37 (1999-2000). Gittel appeals this order, contending that the court lacked the statutory authority to rescind the portion of its earlier Decision and Order regarding undue influence, and that the trial court's implicit finding that Abram propounded the will in good faith is clearly erroneous.

¶ 2. We hold that the trial court had the authority under Wis. Stat. § 806.07(l)(h) to rescind the portion of its Decision and Order regarding undue influence even though that did not change the ultimate order that the estate should proceed intestate. We also hold the trial court had the authority to do so on its own motion as long as both parties had adequate notice.

¶ 3. With respect to the court's decision that Abram is entitled to have the estate pay her costs and attorney fees under Wis. Stat. §§ 879.35 and 879.37, we conclude the trial court did not adequately explain its implicit — and necessary — finding that Abram acted in good faith in propounding the will, nor the relationship between that implicit finding and other apparently inconsistent findings.

¶ 4. Accordingly, on the appeal we affirm the court's order rescinding the portion of its Decision and Order regarding undue influence, but we reverse the order that the estate pay Abram's costs and attorney fees and remand for further consideration of Abram's good faith in propounding the will.

¶ 5. Abram cross-appeals, challenging the trial court's determination that Persha lacked testamentary capacity. She contends the trial court erroneously shifted the burden to her by applying a rebuttable presumption that Persha lacked testamentary capacity at the time he executed the will. We conclude that, although the court erred in stating that there was a rebuttable presumption, its actual analysis applied the correct legal standard and is supported by the record. Accordingly, on the cross-appeal we affirm the trial court's judgment that the will not be admitted to probate because Persha lacked testamentary capacity.

APPEAL — COURT'S AUTHORITY UNDER Wis. Stat. § 806.07(1)(h)

Background

¶ 6. Persha executed a will on January 26, 1999, leaving his entire estate to Abram, who had lived with him for twenty-three years. Persha was seventy-seven years old and was suffering from cancer in the fluid surrounding his brain. He had been admitted to Milwaukee Veteran's Administration Hospital on January 19, 1999, remaining there until his death on February 16, 1999.

¶ 7. After a five-day trial, the trial court on December 20, 2000, issued a lengthy Decision and Order on Gittel's contention that Persha's will should not be admitted to probate because he lacked testamentary capacity and was subjected to Abram's undue influence. At the end of a nineteen-page discussion of the law and the evidence, the Decision and Order stated:

FINDINGS OF FACT
1. Nickolas Persha's Will of January 26, 1999 was properly executed....
2. There is clear, satisfactory, and convincing evidence that Mr. Persha lacked testamentary capacity on January 26, 1999.
3. The proponents of the Will have failed to show that on January 26, 1999, that Mr. Persha had a "lucid interval."
4. There is clear, satisfactory and convincing evidence that Ruth Abram and Mr. Persha had a confidential or fiduciary relationship and that there were suspicious circumstances surrounding the preparation and execution of the Will. There is a rebuttable presumption of undue influence. The proponent of the Will has failed to rebut that presumption.
CONCLUSIONS OF LAW
The proposed Will of Nickolas Persha dated January 26, 1999, shall not be admitted to probate.
Therefore, it is ORDERED that the Estate of Nickolas Persha shall proceed intestate.

¶ 8. Subsequently, the court entered a judgment stating the will would not be admitted to probate, the estate would proceed intestate, and Gittel would be awarded all statutory costs and disbursements. Abram filed an objection to Gittel's bill of costs on a number of grounds and also argued that Gittel's costs should be paid by the estate, not by her, because she propounded the will in good faith. At the same time, Abram moved that her costs and attorney fees be paid by the estate under Wis. Stat. §§ 879.35 and 879.37 because she had propounded the will in good faith.

¶ 9. The court asked for briefing on the issue "whether the Court's findings on undue influence prevents Ms. Abram from recovering costs and attorney fees under Sec. 879.35 and 879.37 Wis. Stats." Gittel argued that because of the finding of fact on undue influence, Abram was precluded from recovering costs and attorney fees under Bethesda Church v. Menning (Estate of Christen), 72 Wis. 2d 8, 22, 239 N.W.2d 528 (1976) (finding of undue influence disqualifies proponent from asserting "good faith" under Wis. Stat; §§ 879.35 and 879.37). Abram argued that the court's entire discussion of undue influence in the Decision and Order was "non-binding dicta" because the court preceded its discussion of undue influence with this statement: "It is not necessary for the court to reach the issue of undue influence by reason of the Court's decision concerning testamentary capacity. However, the Court will briefly discuss undue influence."

¶ 10. The court held a hearing on Abram's motions on February 26, 2001. At the beginning of the hearing, the court asked Abram's attorney whether the court was correct in assuming that Abram was asking the court to rescind the portion of the Decision and Order regarding undue influence, and Abram's attorney answered yes.

¶ 11. At the close of the hearing, the court stated that in its Decision and Order it had not considered the factors that might rebut the presumption of undue influence; however, when Abram brought her motion, it reviewed the law. The court concluded that, in deciding whether the presumption of undue influence was rebutted, it could consider evidence other than that which directly contradicted the suspicious circumstances, such as evidence that Abram had been Persha's constant companion for over twenty years, in essence a "common law wife," that she daily cared for him in the hospital, and that she was "the natural object of Nick Persha's bounty." The court also noted that at least one friend had testified that Persha had told him of his desire to leave Abram his estate. The court found that if Persha had drafted a will when he was competent, he would have left most, if not all, of his estate to Abram. This evidence, the court concluded, was sufficient to rebut the presumption of undue influence. The court stated that if its earlier decision stood — that the presumption was not rebutted — it would result in financial hardship and serious inequity to Abram. Therefore, the court stated, "to the extent that my December 20, 2000 findings regarding undue influence indicate there was undue influence, those findings are hereby rescinded."

¶ 12. The court also concluded that it would be a manifest injustice to make Abram responsible for her own costs and attorney fees and for her to have to pay Gittel's costs and attorney fees. The court therefore ordered that the estate reimburse Abram for her costs and attorney fees and that Gittel's costs and attorney fees be paid by the estate, not by Abram.

1 13. Gittel filed a motion for reconsideration arguing that the twenty-day time period within which the court could reconsider its decision under Wis. Stat. § 805.17(3) had expired. The court denied the motion. It ruled that § 805.17(3) did not limit its authority to grant relief from judgment under Wis. Stat. § 806.07(1)(h) when the reasons justifying relief are apparent to the court, and that relief was appropriate under the latter statute.

Discussion

¶ 14. Gittel contends the trial court erred in ordering that Abram's costs and attorney fees be reimbursed because Abram did not act in good faith in propounding the will as required by Wis. Stat. §§ 879.35 and 879.37. She argues that the trial court's finding of undue influence precludes a finding of good faith, and the court lacked authority under Wis. Stat. §§ 806.07 and 879.31 to rescind that finding.

¶ 15. Wisconsin Stat. § 806.07(l)(h) provides:

Relief from judgment or order. (1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
(h) Any other reasons justifying relief from the operation of the judgment.

Wisconsin Stat. § 879.31 adopts § 806.07 in probate proceedings and provides: "On motion, notice to adverse parties and hearing, the court may relieve a party or legal representative from a judgment or orders of the court or the party's stipulation as provided in s. 806.07."

¶ 16. Gittel argues that Wis. Stat. §§ 806.07(1) and 879.31 do not provide the court with authority to amend its December 20 Decision and Order as it did for three independent reasons: (1) the statutes authorize relief only from a "judgment, order, or stipulation" and the court did not amend the order or the judgment but only amended findings of fact; (2) the statutes do not authorize the court to act on its own motion; and (3) a court may not act under §§ 806.07 and 879.31 unless the parties have advance notice, and she did not.

¶ 17. The issues of statutory interpretation presented by these arguments are questions of law, which we review de novo. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998). The aim of statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself. Id. If the words of the statute convey the legislative intent, that ends our inquiry. Id. However, if the language of the statute is ambiguous or unclear, the court examines the scope, history, context, subject matter, and the object of the statute in order to ascertain the intent qf the legislature. Id. at 255-56. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. Id. at 256. Whether a statute is ambiguous is a question of law. See id. at 255-56.

1. Whether Wis. Stat. § 806.07 authorized the court to amend factual findings.

¶ 18. Gittel's first argument presumes that only the language following "Therefore, it is ORDERED ..." in the December 20 Decision and Order is an "order" within the meaning of Wis. Stat. § 806.07. While this may be a reasonable construction of "order," we conclude it is not the only reasonable interpretation. It is also reasonable to construe "order," as well as "judgment," as encompassing all the findings of fact and conclusions of law the court makes in arriving at the order or judgment, and we conclude this is more reasonable for the following reasons.

¶ 19. There is no uniform prescription for how much of the decisional underpinnings (that is, findings of fact and conclusions of law) are contained in the portion of a document labeled "order," or a document titled "judgment." The portion of the Decision and Order in this case that follows "Therefore, it is ORDERED ..." could just as properly have said: "Therefore, it is ORDERED that, because Nicholas Persha lacked testamentary capacity on January 26, 1999, and because Ruth Abram exercised undue influence, the January 26, 1999 will shall not be admitted to probate and his estate shall proceed intestate." Similarly, the document labeled "Judgment" could also have contained the court's determination on testamentary capacity and undue influence.

¶ 20. The evident purpose of the statute is to provide relief to a party, in certain situations, from the adverse effect of a court's decision or of the party's own agreement. Where a court's determination that a party exercised undue influence has an adverse effect on a party, and the party can otherwise meet the. statutory requirements for relief, it makes little sense to prohibit a party from doing so simply because that determination is not contained in the "order" portion of a decision and order or a judgment. Moreover, a stipulation may contain agreements to facts and agreements to legal propositions. Certainly if the parties had stipulated that Abram had exercised undue influence, she could have sought relief from that stipulation. We see no reason why the legislature would intend to authorize a court to grant relief in that case, but not when the court itself determined there was undue influence.

¶ 21. We also do not agree with Gittel that Grodin v. Smith (Estate of Smith), 82 Wis. 2d 667, 676-77, 264 N.W.2d 239 (1978), suggests the trial court may not amend the finding of undue influence simply because the amendment does not change the will's inadmissibility to probate. Estate of Smith simply does not address this question, because there the trial court did vacate findings of fact, conclusions of law, and the judgment. See id. at 669.

¶ 22. However, Estate of Smith is helpful because it does make clear that the trial court does have the authority to act under Wis. Stat. § 806.07(1)(h) when, upon further consideration, it decides that its decision was incorrect. Estate of Smith, 82 Wis. 2d at 674, 676-77.

¶ 23. Gittel also contends that one reason to conclude the trial court in this case did not have the authority to act under Wis. Stat. § 806.07 is that otherwise we undermine the twenty-day limitation on reconsideration under Wis. Stat. § 805.17(3). However, the court in Estate of Smith expressly held that the trial court there was authorized under § 806.07(1)(h) to reconsider its initial findings of fact, conclusions of law, and judgment even though the time for acting under § 805.17(3) had expired. Estate of Smith, 82 Wis. 2d at 672-73. Accordingly, a concern with the time limit in § 805.17(3) is not a reason for limiting the authority of a trial court to act under § 806.07(l)(h) to correct its errors.

2. Whether Wis. Stat. § 806.07 authorizes the court to act sua sponte.

¶ 24. Gittel's second major argument is that Wis. Stat. § 806.07 does not authorize the court to act on its own motion. We conclude that the plain language "On motion . . . the court... may ..." encompasses a motion by the parties or the court. Generally, a court has the authority to raise an issue sua sponte if it gives the litigants notice that it is considering the issue and an opportunity to argue. State v. Holmes, 106 Wis. 2d 31, 40-41, 315 N.W.2d 70S (1982). The evident purpose of § 806.07 is to give a court authority to provide relief on equitable grounds, see State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 542, 363 N.W.2d 419 (1985), and the catch-all in para, (h) shows that the enacting body intended this authority to be broad, see Conrad v. Conrad, 92 Wis. 2d 407, 418, 284 N.W.2d 674 (1979). There is no logical reason to prevent the court from initiating sua sponte a consideration of relief under the statute.

¶ 25. Gittel points out that Wis. Stat. § 805.17(3) expressly provides that a court may act under that statute on its own motion ("Upon its own motion or the motion of a party ... the court may ....") and argues that the absence of this language in Wis. Stat. § 806.07 shows the supreme court did not intend to authorize the court to act on its own motion under that statute. We disagree.

¶ 26. There is a rule of statutory construction that different word choices in different parts of the same statute, particularly within the same section, may create an inference that the enacting body intended different, distinct meanings. American Motorists Ins. Co. v. R & S Meats, Inc., 190 Wis. 2d 196, 214, 526 N.W.2d 791 (Ct. App. 1994). This rule rests on the premise that it is logical to assume the enacting body had the entire statute or section in mind when it chose the different words. Gittel, however, provides us with no basis for assuming that the wording of Wis. Stat. § 806.07 was chosen with the different wording of Wis. Stat. § 805.17(3) in mind. Indeed, the history shows that when first enacted, § 805.17(2), now § 805.17(3), provided: "Upon motion of a party . ..," S. Ct. ORDER, 67 Wis. 2d 585, 712 (eff. Jan. 1, 1976); § 806.07, in contrast, provided "On motion ...," as it currently does, S. Ct. Order, 67 Wis. 2d 585, 726. The words "its own motion or the" were added to § 805.17(3) in 1991. S. Ct. Order, 160 Wis. 2d xiii, xiv (eff. July 1, 1991). This history supports our reading of § 806.07: because the language of § 806.07 never qualified the phrase "[o]n motion" with "of a party," as did § 805.17(3) (originally enacted as § 805.17(2), see S. Ct. Order, 73 Wis. 2d xxxi, xxxvi (eff. Jan. 1, 1977)), it was not necessary to add language to § 806.07 to include the court.

f 27. In holding that a court may act on its own motion under Wis. Stat. § 806.07, we emphasize that when a court does so, the parties must have notice and the opportunity to be heard. Because the party who wishes to oppose relief under § 806.07 has the same opportunity to do so whether the court or the other party initiates consideration of relief, there is, as we have already indicated, no logical reason to read in a prohibition on the court initiating the consideration.

3. Whether Gittel had adequate notice.

¶ 28. Gittel's third argument is that she did not have notice that the court intended to modify the Decision and Order. It is true that Abram's motion did not apprise Gittel that the issue of modification of the Decision and Order would be addressed at the hearing. However, the court's questions to Abram's attorney at the beginning of the hearing unmistakably informed Gittel's counsel that the court was considering a modification. Gittel's attorney had the opportunity before the court ruled to object to the lack of notice and request a postponement, but did not. In any event, Gittel is not arguing on appeal that the evidence does not support the court's change in the finding on undue influence.

¶ 29. We agree that Gittel did not have notice and the opportunity to be heard on the specific issue of the court's authority under Wis. Stat. § 806.07, because the court did not refer to § 806.07 until the written order denying Gittel's motion for reconsideration without a hearing. However, Gittel does not point to any argument she would have made in the trial court regarding that court's authority under § 806.07 that she cannot fully address on appeal. We have decided de novo all the issues regarding § 806.07 she has raised on appeal, and we have decided them against her. We therefore conclude she has not been prejudiced by the lack of notice and opportunity to be heard in the trial court on that court's authority under § 806.07.

CROSS-APPEAL — TESTAMENTARY CAPACITY

Background

¶ 30. In its decision that Persha lacked testamentary capacity at the time he executed the will, the trial court explained that it gave substantial weight to the medical testimony, which included that of Persha's treating physician, Dr. Davis, and the admitting physician, Dr. Hower. Dr. Davis, who saw Persha on a daily basis in the hospital, testified, based on his personal observations, that although Persha's "mental status fluctuated at times," Persha "remained basically disorientated." Dr. Davis's opinion was that Persha "would have had difficulty in understanding how to manage his daily affairs ... includ[ing] making a legal document" during his entire stay at the hospital. Three days before Persha executed the will, Dr. Davis asked Persha's sister for her consent for a medical procedure because he felt Persha was unable to give meaningful consent, and did not seem to comprehend the nature of having the procedure.

¶ 31. Dr. Hower, who cared for Persha on a day-to-day basis at the hospital, testified that when she admitted him into the hospital, Persha did not know where he was. Subsequently, he showed signs of deliriousness, and he was put in restraints because he did not realize that he could harm himself by pulling out his IV tubes. She agreed that Persha was not able to give consent to the medical procedure performed three days before execution of the will because he was not able to make decisions, and was not able to "understand the good and bad consequences of the decision he makes." Both doctors testified that cancer in the fluid around the brain can cause confusion and disorientation.

¶ 32. The trial court also relied on the medical records and daily progress notes that reported and gave specific examples of Persha's confusion and disorientation in the days after his admission to the hospital and before the date of the execution of the will. And the court credited the testimony of Reuben Gittel, who knew Persha well and visited Persha on January 20, 1999. Reuben Gittel testified to the nonsensical things Persha did and said during that visit, stating that Persha did not know where he was, "didn't know him, [Reuben,] half the time," and just stared in response to some questions.

¶ 33. Based on this evidence, the court found there was clear, convincing, and satisfactory evidence that, prior to the execution of the will, Persha "suffered from mental lapses of the type that stood to [a]ffect his testamentary capacity before execution of the will on January 26, 1999." Relying on Sorensen v. Ziemke (Estate of Sorensen), 87 Wis. 2d 339, 274 N.W.2d 694 (1979), the court stated that "a presumption [therefore] has been established that Mr. Persha's lack of testamentary capacity was ongoing." Again relying on Estate of Sorensen, the court framed the next question as whether Abram was able to "rebut the presumption of incapacity by showing that Mr. Persha had a 'lucid interval.'" The court emphasized that the critical inquiry was whether, in spite of Persha's general mental condition of being confused and disoriented, he did, at the time of the execution of the will, have an interval in which he possessed testamentary capacity. The court found the time of execution of the will to be approximately 12:30 p.m. or 1:00 p.m. on January 26, 1999.

¶ 34. The court then recounted the evidence of the several doctors, including Dr. Davis and Dr. Hower, and the several nurses caring for Persha that consistently showed he continued to be confused and disoriented on January 26 — not oriented to time and place, not able to carry on a conversation, and not understanding what was going on. The court explained that it attached particular weight to the nurses' testimony, because they had the most regular and frequent contact with Persha. One of the nurses caring for Persha on January 25 and 26 testified that she would not have witnessed a will for a person in Persha's condition on January 26 because he would not understand. Another nurse, who did assessments of Persha's mental ability because he was in restraints, testified that at noon, 1:00 p.m., and 2:00 p.m. on January 26 Persha was confused and disoriented, and she did not think he was capable of understanding the will's content.

¶ 35. The court also relied on Reuben Gittel's testimony of Persha's condition on January 26. Reuben visited him at approximately 10:00 a.m. and testified that Persha seemed not to know "where he was or who he was."

¶ 36. The court discounted the testimony of the only medical witness who testified that Persha had the mental capacity to execute a will, because that doctor had never seen nor treated Persha and could not testify to a reasonable degree of medical certainty that Persha knew what property he owned. The court also found that the two hospital social workers who witnessed the will did not have an adequate basis on which to express a meaningful opinion about Persha's testamentary capacity: their only prior contact with Persha had been for one or two minutes prior to January 26,1999, and at the time of the execution of the will, they did not ask him any questions to determine what he understood, they knew little or nothing about his medical condition, and they did not have a good recollection of the will signing.

¶ 37. Finally, the court found that Abram's testimony on her conversation with Persha after the will was signed — that Persha told her why he wanted her to have the property and what she was to do concerning a funeral, selling some property, and the leases — was not credible. The court based this assessment on the fact that Abram told no third party about this conversation and made no effort to show to the witnesses of the will that Persha knew what he was doing, even though she knew Persha was disoriented and knew his sisters would not like the will and would contest it.

¶ 38. Based on its assessment of the evidence, the court concluded that Abram had not proved a "lucid interval," and therefore "failed to rebut the presumption that Mr. Persha's lack of testamentary capacity continued on the date the will was executed."

Discussion

¶ 39. Abram contends the court erred in shifting the burden to her to show that Persha had a lucid interval at the time he executed the will, because that is not the ruling of Estate of Sorensen. Had the court applied the correct standard, she asserts, the result would be a determination that Persha had testamentary capacity at the time he executed the will.

¶ 40. The standard for testamentary capacity is well-established:

The testator must have mental capacity to comprehend the nature, the extent, and the state of affairs of his property. The central idea is that the testator must have a general, meaningful understanding of the nature, state, and the scope of his property but does not need to have in his mind a detailed itemization of every asset; nor does he need to know the exact value of his property .... The testator must know and understand his relationship to persons who are or who might naturally or reasonably be expected to become the objects of his bounty from which he must be able to make a rational selection of his beneficiaries. He must understand the scope and general effect of the provisions of his will in relation to his legatees and devisees. Finally, the testator must be able to contemplate these elements together for a sufficient length of time, without prompting, to form a rational judgment in relation to them, the result of which is expressed in the will.

O'Brien v. Lumphrey (Estate of O'Loughlin), 50 Wis. 2d 143, 146-47, 183 N.W.2d 133 (1971).

¶ 41. The opponent of a will must prove a lack of testamentary capacity by clear, convincing, and satisfactory evidence. Estate of Sorensen, 87 Wis. 2d at 344. We affirm the trial court's finding on testamentary capacity unless it is contrary to the great weight and clear preponderance of the evidence, id. at 343, that is, unless it is clearly erroneous, Schorer v. Schorer, 177 Wis. 2d 387, 396, 501 N.W.2d 916 (Ct. App. 1993) (equating "contrary to the great weight and clear preponderance of the evidence" standard with the "clearly erroneous" standard). However, we review de novo whether the court applied the correct legal standard to the evidence. Carney v. Mantuano, 204 Wis. 2d 527, 532, 554 N.W.2d 854 (Ct. App. 1996).

¶ 42. The court's reading of Estate of Sorensen is at the heart of the dispute on the cross-appeal. In Estate of Sorensen, the objector to the will contended that the trial court erred in determining the testator possessed testamentary capacity, because, the objector argued, the testator had been adjudicated mentally incompetent approximately four years before executing the will and that legal status had not changed. In rejecting this argument, the court stated:

The fact that the testator was mentally committed in 1959 is not controlling. The question of a testator's competency is determined at the time of the execution. This court has also recognized that one adjudicated mentally incompetent or subject to guardianship may have lucid intervals during which the individual possesses sufficient testamentary capacity.
The appellant's contention that Sorensen lacked mental capacity is rebutted by the fact that the October 8,1963 will reflects that the testator was able to convey his wishes and the extent of his estate to the drafting attorney, identify beneficiaries expected to be the objects of his bounty and explain the reasons for the nominal bequests given to two of the named legatees and the exclusion of certain relatives. The testator's ability to perform the foregoing demonstrates testamentary capacity as outlined in the general criteria set forth in Estate of 0'L[o]ughlin ....
The fact of legal guardianship and evidence of an inability to handle one's business affairs is a relevant factor in reaching a decision on testamentary capacity, but it is not solely controlling. We hold that the appellant did not carry the burden of proving Martin V Sorensen lacked testamentary capacity on October 8, 1963 when his last will and testament was executed.

Estate of Sorensen, 87 Wis. 2d at 345-46 (citations omitted).

¶ 43. The trial court here apparently relied on V Wisconsin Judicial Benchbooks: Probate, Guardianship, and Mental Health, PR 2-13 (2d ed. 2000) in its interpretation of the above language from Estate of Sorensen. The court read the case to say that, if the objector shows that "the testator had a mental illness or some other lack of testamentary capacity prior to the execution, a presumption is established that the lack of capacity was ongoing (and therefore infected the making of the will)"; and this presumption could be rebutted if the will's proponent shows that the testator had a lucid interval. We can see that the Estate of Sorensen court's use of the word "rebutted" might lead to this reading. However, we conclude the Estate of Sorensen court did not mean to hold that evidence of prior mental incapacity created a rebuttable presumption as a matter of law. Rather, after rejecting the proposition that, as a matter of law, proof of the prior mental commitment satisfied the standard for lack of testamentary capacity at the time of execution of the will, the Estate of Sorensen court simply evaluated the evidence in that particular case: the court acknowledged that the evidence of prior mental commitment was relevant to testamentary capacity at the time of will execution, but decided that, given the evidence of the testator's ability to communicate and understand at the time of will execution, the objector had not met his burden of proving lack of testamentary capacity by clear, convincing, and satisfactory evidence.

¶ 44. However, although the trial court was mistaken in its reading of Estate of Sorensen and expressed an incorrect legal standard as a result, the actual analysis the court applied was nevertheless correct. The court's analysis shows that it understood that the evidence of Persha's infirm mental state prior to January 26 was not conclusive;-the court understood that Gittel had to prove by clear, convincing, and satisfactory evidence that Persha lacked testamentary capacity at the time he signed the will. In this case, because the court found that Persha was consistently disoriented and confused from the time he was admitted to the hospital and because the court credited the evidence that this was the result of Persha's serious illness, the court could reasonably infer that this general condition continued — not as a matter of law but as a matter of fact — at the time Persha signed the will. Thus, it was not error for the court to look for evidence of a lucid interval. Although the court erred in stating that Abram had the burden of proving a lucid interval (because the burden of proving lack of testamentary capacity, and, thus, lack of a lucid interval, remained with Gittel), we conclude the court's analysis of the evidence of a lucid interval was not affected by that error.

¶ 45. As a practical matter, Abram presented witnesses who testified in support of a lucid interval. The court explained in great detail why it rejected the testimony of each of these witnesses. These reasons did not have to do with which party had the burden of proving a lucid interval. Rather, the reasons were specific to the testimony of each witness — lack of foundation, lack of knowledge, lack of credibility, and vague recollections. This type of evaluation of the evidence is properly the role of the trial court, not a reviewing court. Becker v. Zoschke (Estate of Becker), 76 Wis. 2d 336, 346, 251 N.W.2d 431 (1977). Had the court found some of the testimony of a lucid interval worthy of belief, its allocation to Abram of the burden to prove a lucid interval might have affected the outcome: the court might then have had to weigh evidence for and against a lucid interval, and which party had the burden to prove a lucid interval might have determined whether the court found a lucid interval. But the trial court's finding here that there was no lucid interval was determined by the court's rejection of testimony supporting a lucid interval because of what it viewed as deficiencies in that testimony, and by the court's acceptance of the testimony, which it found credible, that showed there was no lucid interval.

¶ 46. In summary, we agree that the court erroneously stated that the burden shifted to Abram to rebut, through proof of a lucid interval, the presumption that Persha's mental incapacity continued at the time of the execution of the will. However, we conclude this misunderstanding of the law did not affect the court's analysis of the evidence and did not result in a deviation from the correct burden and standard of proof, which the court applied in this case: the objector must prove lack of testamentary capacity by clear, convincing, and satisfactory evidence. Accepting the court's credibility evaluations as we are bound to do, we conclude the court's determination that Gittel proved lack of testamentary capacity by clear, convincing, and satisfactory evidence is. not clearly erroneous.

APPEAL — ABRAM'S GOOD FAITH

¶ 47. Returning to Gittel's appeal, we conclude her contention that, even if the trial court had the authority to rescind its finding of undue influence, it erred in ordering that Abram's costs and attorney fees be reimbursed by the estate. Gittel asserts that the absence of undue influence is not the equivalent of good faith under Wis. Stat. §§ 879.35 and 879.37. She points out, correctly, that the court did not explain why it was deciding that Abram propounded the will in good faith, other than to explain its reason for rescinding the finding on undue influence and to conclude in general terms that it would be a manifest injustice if Abram had to pay her costs and attorney fees. Gittel argues that the trial court's findings on Abram's credibility and other findings in the context of its decision on testamentary capacity preclude a finding of good faith.

¶ 48. A court's decision whether to allow costs and attorney fees under Wis. Stat. §§ 879.35 and 879.37 to a personal representative who unsuccessfully propounds the will has two components. First, the court must decide if the proponent propounded the will in good faith. This decision involves making factual findings. See Lehman v. Henkey (Estate of Alburn), 23 Wis. 2d 386, 389-90, 127 N.W.2d 56 (1964) (reviewing trial court's "finding" of good faith); see also Schoen v. Van Hogen (Estate of Miller), 265 Wis. 420, 425, 61 N.W.2d 813 (1953). If the court finds good faith, then the court may, but need not, award attorney fees. This decision calls for an exercise of the court's discretion. See Ritt v. Rasmussen (Will of Rasmussen), 1 Wis. 2d 615, 621, 85 N.W.2d 383 (1957). We affirm a trial court's factual findings if they are not clearly erroneous, Wis. Stat. § 805.17(2); we affirm a discretionary decision if the court applied the correct law to the relevant facts and reasoned its way to a reasonable conclusion. Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991).

¶ 49. When a court does not expressly make a finding that is necessary to its decision, we may assume it made that finding, State v. Long, 190 Wis. 2d 386, 398, 526 N.W.2d 826 (Ct. App. 1994), and we review the record to determine if the presumed finding is clearly erroneous. Similarly, when a court does not adequately explain a discretionary decision, we may review the record to determine whether the record supports the trial court's decision. State v. Clark, 179 Wis. 2d 484, 490, 507 N.W.2d 172 (Ct. App. 1993).

¶ 50. We agree with Gittel that the evidence the court relied on to find no undue influence by Abram— her close and long-term relationship with Persha, that she was the natural object of his bounty, and that he would have left most, if not all, of his estate to her had he possessed testamentary capacity — does not in this case completely address the question of her good faith. The court had made findings in the context of its decision on testamentary capacity — which it did not rescind — that suggest the court believed that Abram knew Persha lacked testamentary capacity and nevertheless arranged for him to sign the will and propounded the will. This is not a case, therefore, where there is simply evidence that would support a finding that Abram did not act in good faith: in such a situation we would affirm as long as there was evidence to support the finding of good faith that the trial court made. See Estate of Becker, 76 Wis. 2d at 347. Rather, in this case, there are arguably other findings made by the trial court, based on the evidence, that appear contrary to a finding of good faith.

¶ 51. However, we do not agree with Gittel that it is appropriate to reverse the trial court's implicit finding on good faith. The apparently contrary findings were not brought to the court's attention, and therefore the court never had the opportunity to consider previous findings that might conflict with a finding of good faith.

¶ 52. We conclude the correct course is to reverse the trial court's order that the estate reimburse Abram's costs and attorney fees and remand to permit the court to determine whether Abram acted in good faith in propounding the will. The court need take no additional evidence, and need conduct only such further proceedings as it considers necessary to ,resolve this issue.

By the Court. — Judgment affirmed; order affirmed in part, reversed in part and cause remanded.

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

       The document is titled "Memorandum Decision and Order," but for brevity's sake, we refer to it as "Decision and Order."

       Wisconsin Stat. § 879.33 provides that the costs of a prevailing party may be "paid by the losing party or out of the estate as justice may require."

       Wisconsin Stat. § 879.35 provides:
      Costs in will contests. Costs may be awarded out of the estate to an unsuccessful proponent of a will if the unsuccessful proponent is named- as an executor therein and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named as an executor in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.
      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 as an executor therein and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named as an executor in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.

       The court entered a written order on March 7, 2001, ordering that the portion of its decision regarding undue influence was rescinded, and ordering that Abram's costs of $2,851.22 and attorney fees of $47,330 be reimbursed by the estate.

       WISCONSIN Stat. § 805.17(3) provides in relevant part:
      (3) Reconsideration motions. Upon its own motion or the motion of a party made not later than 20 days after entry of judgment, the court may amend its findings or conclusions or make additional findings or conclusions and may amend the judgment accordingly.

       Alternatively, Gittel argues that, even if the rescission of that finding was authorized, the court's implicit finding that Abram acted in good faith is clearly erroneous. We address this alternative argument in the last section of this opinion.

       For purposes of this argument, it is not necessary to distinguish findings of fact from conclusions of law, because Gittel's argument is the same for both.

       When Estate of Smith was decided, Wis. Stat. § 805.17(3) had a ten-day limitation. Grodin v. Smith (Estate of Smith), 82 Wis. 2d 667, 673 n.1, 264 N.W.2d 239 (1978).

       Gittel also argues that the trial court's failure to act within the twenty days required by Wis. Stat. § 805.17(3) is an independent basis for reversing the trial court. However, because of our interpretation of Wis. Stat. § 806.07(l)(h), it is unnecessary for us to resolve the parties' dispute over the application of that statute.

       Although we may not use legislative history to create an ambiguity, we may use it to support the plain language of the statute. Novak v. Madison Motel Assocs., 188 Wis. 2d 407, 416, 525 N.W.2d 123 (Ct. App. 1994). Here, we use it only to show the deficiency in Gittel's argument based on the language of Wis. Stat. § 805.17(3).

       In Lyman v. Lyman, 184 Wis. 2d 124, 137, 516 N.W.2d 767 (Ct. App. 1994), we stated that "the court [there] should not have proceeded under [Wis. Stat.] § 806.07 because neither party had filed a motion for modification under § 806.07, neither party had notice that such a motion would be entertained, and neither party was prepared to argue that motion." We agreed with the appellant in Lyman that the court's action "took him by surprise." Id. This ruling is not inconsistent with our conclusion in this case that a court may properly raise the issue of relief under § 806.07 sua sponte as long as the parties have adequate notice.

       Gittel argues that she was entitled to notice of this issue at least five days prior to the hearing. However, the statute on which she relies, Wis. Stat. § 801.15(4), applies to a "written motion." Wisconsin Stat. § 802.01(2) specifically excepts motions made during a hearing or trial from the requirement that a motion be in writing. Thus, the rules of civil procedure contemplate that a motion may be made orally during a hearing.

       Dr. Davis had been trained in evaluating a patient's mental status and had done so for more than twenty-five years. He had treated Persha since Persha was admitted to the hospital on January 19, 1999.

       The court stated that this was not an exhaustive discussion of evidence showing Persha's diminished mental capacity.

       The court also found very credible and placed great weight on the testimony of Pastor Richard Aiken: he had known Persha for forty-five years and visited him at 1:30 p.m. on January 25,1999. Persha did not recognize him and told him that the day before his (Persha's) nephew had visited Persha and they had gone to the farm together. None of that had happened. Pastor Aiken believed that Persha was unable to sign any legal document on January 25, 1999.

       V Wisconsin Judicial Benchbooks: PRObate, GuaRdianship, and Mental Health, PR 2-13 (2d ed. 2000), provides in part:
      G. Testamentary capacity, generally 1) Any person may make or revoke will if
      a. 18 years or older
      b. Of sound mind

        Will of Wright 266 W 89 (1954) Estate of Staab 2) Mental capacity presumed as fact of normal mind until contrary is shown 166 W 587 (1918) a. If mental illness or lack of testamentary capacity before execution of will can be shown, legal rebuttable presumption has been established that condition continued

        Estate of Sorensen 87 W2d 587 (1979) • May be rebutted by establishing a lucid interval

        Will ofZych 251W 108 (1947) b. Presumed that testator knew contents of will

       Gittel agrees Sorensen v. Ziemke (Estate of Sorensen), 87 Wis. 2d 339, 274 N.W.2d 694 (1979), does not support the trial court's statement of the law. However, she asserts that Ripley v. Babcock, 13 Wis. 425, 429 (1861), and Wright v. Jackson, 59 Wis. 569, 576, 18 N.W 486 (1884), do. Ripley concerns the execution of a mortgage, but the court relied on the proposition from 1 ROBERTS' Law of Wills and Stock on Law of Non Compotes Mentis, 51 (23 Am. Law Library), as support for its statement: "[Ljunacy being once established, the burden is on the party claiming through any act of the lunatic, to show it was done in a lucid interval." Ripley, 13 Wis. at 429. Wright, which concerns a deed, relied on Ripley for this proposition. Wright, 59 Wis. at 576. We decline to reach back to these cases to establish a presumption and consequent burden-shifting that is inconsistent with the much more recent and clearly established standards for proving lack of testamentary capacity to make a will.

       For example, in the context of rejecting Abram's account of her conversation with Persha after he executed the will, the court stated:
      The fact that she did not take steps to show to the witnesses at the time of the execution of the Will that Mr. Persha understood the document and was in agreement with it, strongly indicates to the Court that Ms. Abram was aware that if appropriate questions had been asked of Mr. Persha in the presence of the witnesses, that he would not have understood and that he would not have been able to express what the document that he was signing was doing.

       We do not fault Gittel for not bringing these findings to the trial court's attention at the hearing. The court did not ask Gittel to address whether, assuming it rescinded the finding on undue influence, there was still a basis for finding Abram had not acted in good faith. And we cannot say that Gittel should have anticipated that, once the court announced its decision to rescind the finding on undue influence, it would immediately and without further explanation decide that the estate should reimburse Abram's costs and attorney fees.


source: Caselaw Access Project

author: VERGERONT, PJ.

license: Public Domain

text:
    Mary E. Fazio, Plaintiff-Appellant, v. Department of Employee Trust Funds and Eric O. Stanchfield, Defendants-Respondents.
    Court of Appeals

      No. 01-2595.

      Submitted on briefs March 14, 2002. —
    Decided April 25, 2002.

    2002 WI App 127
    (Also reported in 645 N.W.2d 618.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert L. Elliott, Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Joely Urdan, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Dykman and Roggensack, JJ.
   VERGERONT, PJ.

¶ 1. Mary Fazio appeals the order dismissing her complaint, which alleged that the retention of the death benefit due her by the Department of Employee Trust Funds (DETF) constituted unjust enrichment and a taking without just compensation contrary to Wis. Const. art. I, § 13. The circuit court dismissed the complaint without prejudice upon concluding that Fazio had not exhausted the administrative remedies available to her. She contends on appeal that using the administrative process would be futile, and she is therefore not required to exhaust it before seeking in court the interest she claims is due her. We conclude that Fazio was not required to appeal to the DETF Board before filing this action because the Board did not have the authority to decide Fazio's claims and grant the relief she seeks. We therefore reverse and remand for further proceedings.

BACKGROUND

¶ 2. Because we are reviewing an order deciding a motion to dismiss the complaint, we begin with the allegations of the complaint. Mary Fazio is the widow of Anthony Fazio, who died on January 2, 1999. At the time of Anthony's death, he was a participant in the Wisconsin Retirement System (WRS) and had named Mary as his beneficiary. On January 2, 1999, she was entitled to a lump-sum death benefit of $506,570, but it remained in the possession of DETF until December 21, 2000, and DETF had the use of it during that time. On information and belief, DETF has retained for substantial periods of time the lump-sum death benefits due other beneficiaries after the benefits were distributable. DETF was unjustly enriched by the value of the use of those funds during the time period they were retained, and DETF's retention and use of those funds during that time period was an unconstitutional taking under the Wis. Const. art. I, § 13. The complaint was filed as a class action, and Mary sought for herself and each member of the class the amount of unjust enrichment to DETF as a result of the retention of the benefits due each, and the amount taken from each without just compensation, plus interest.

¶ 3. DETF moved to dismiss the complaint on the ground that the exclusive remedy for Fazio, and others in her situation, was an appeal to the DETF Board and then review of the Board's decision by an action for certiorari review in the circuit court. Accompanying the motion was the affidavit of a DETF employee averring that on April 4, 2001, Fazio had filed an appeal with the DETF Board of the determination of DETF that Fazio was not entitled to any interest on her lump-sum benefit under Wis. Stat. § 40.73(1)(c) (1999-2000), and the appeal had been set for a pre-hearing conference on July 13, 2001. The DETF determination letter, attached to the affidavit, stated that the death benefit paid to Fazio was correctly calculated under § 40.73(l)(c), based on the present value on the day following the date of her husband's death, and there was no statutory provision for adding interest regardless of when it was paid or the form in which it was paid. The determination letter advised that Fazio could appeal to the DETF Board, and added:

However, it is important for [you] to understand that the Board has no equity authority in such cases. This means that while they may sympathize with [your] position, they cannot take an action that is contrary to the law. In order for [you] to be successful in an appeal to the Board, [you] will need to offer a legal argument that supports [your] right to interest payments in the death benefit [you] received. Again, based on my analysis of the applicable state statutes, there is no legal basis on which the Board could include interest in the death benefit.

¶ 4. Fazio opposed the motion to dismiss, arguing that appeal to the Board would be futile, because DETF had already taken the position that it had no statutory authority to award Fazio the interest she sought, and had repeated that position in its brief supporting its motion to dismiss. According to Fazio, DETF's own regulation, Wis. Admin. Code § ETF 11.03(2)(a), prohibited it from giving the plaintiff class the equitable relief it sought. DETF replied that the administrative process was not futile because the Board had the authority to adopt a different interpretation of the statutes than DETF had employed in its determination on Fazio's request for interest; and, under Wis. Admin. Code § ETF 11.12(l)(d), the Board had the authority to remand "the matter to the department with instructions to take necessary action on the matter, consistent with the final decision." Accordingly, DETF argued the Board did have the authority to decide that Fazio was entitled to interest and to order DETF to pay her interest.

¶ 5. The circuit court concluded that under the recent decision of State ex rel. Hensley v. Endicott, 2001 WI 105, 245 Wis. 2d 607, 629 N.W.2d 686, Fazio had to exhaust the available administrative remedies unless the result of the administrative process was "preordained." The court acknowledged difficulty in understanding DETF's argument on the source of the Board's authority to order that interest. It also acknowledged 79 Op. Att'y Gen. 139, 142 (1990), which opines that the DETF Board's equity powers are limited to those defined in Wis. Stat. § 40.03(l)(a), and states that the author "located no other statute, which, in [the author's] opinion, expressly or impliedly gives the ETF Board additional equity powers." However, the court also recognized that attorney general opinions are not binding. The court concluded that there was nothing to prevent the Board from deciding that it had the authority to award Fazio the interest she sought, that it was possible the Board would do so, and therefore the result was not preordained.

DISCUSSION

¶ 6. Fazio argues that the circuit court erred in concluding that Hensley was controlling, because the requirement of exhaustion of administrative remedies imposed in that case was based on the language of a specific statute, the Prison Litigation Reform Act (PLRA), and similar language in Wis. Stat. ch. 40 does not exist. According to Fazio, the common law doctrine of exhaustion of administrative remedies applies here and does not require exhaustion, because it would be futile and would not serve the purposes of the exhaustion doctrine. This is so, Fazio argues, because the Board is without authority to provide her with the relief she seeks. DETF responds, as it argued before the circuit court, that the Board does have the authority to order DETF to pay Fazio the interest she seeks if it decides DETF's decision was in error.

¶ 7. A resolution of these issues requires the interpretation of statutes and regulations. These are all questions of law, which we review de novo, see Hensley, 2001 WI 105 at ¶ 6; however, we benefit in our review from the circuit court's thoughtful analysis.

¶ 8. We agree with Fazio that Hensley is not controlling. The PRLA, codified at Wis. Stat. § 801.02(7)(b), provides:

(b) No prisoner may commence a civil action or special proceeding, including a petition for a common law writ of certiorari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted all available administrative remedies that the department of corrections has promulgated by rule or, in the case of prisoners not in the custody of the department of corrections, that the sheriff, superintendent or other keeper of a jail or house of correction has reduced to writing and provided reasonable notice of to the prisoners.

In Hensley, the plaintiff, a prisoner, argued that there was a common law futility exception to this statutory requirement. That exception, he contended, applied to his constitutional challenges to certain Department of Correction (DOC) administrative regulations and permitted him to bring an action for a declaratory judgment without first going through the administrative inmate complaint review process. The supreme court concluded that the plain language of the statute contained no exception for futility. Hensley, 2001 WI 105 at ¶ 9. The supreme court disagreed with the analysis of this court, which had relied on cases that recognized a futility exception to the administrative exhaustion requirement, because those cases had been decided before the enactment of the PLRA. Id. at ¶ 13.

¶ 9. Because the result in Hensley was based on the language of the PLRA, the threshold question is whether the statutes governing DETF contain similar language. We conclude they do not. Wisconsin Stat. § 40.03(l)(j) states that the Board:

(j) Shall accept timely appeals from determinations made by the department, other than appeals of determinations made by the department regarding disability annuities. The hoard shall review the relevant facts and may hold a hearing. Upon completion of its review and hearing, if any, the board shall make a determination which it shall certify to the participating employer or the appropriate state agency and to the appropriate employee, if any.

This paragraph plainly makes available to Fazio an administrative appeal to the Board from DETF's determination, but it does not require her to exhaust that appeal before bringing an action in court. Wisconsin Stat. § 40.08(12) provides:

(12) COURT Review. Notwithstanding s. 227.52, any action, decision or determination of the board, the Wisconsin retirement board, the teachers retirement board, the group insurance board or the deferred compensation board in an administrative proceeding shall be reviewable only by an action for certiorari in the circuit court for Dane County that is commenced by any party to the administrative proceeding, including the department, within 30 days after the date on which notice of the action, decision or determination is mailed to that party, and any party to the certiorari proceedings may appeal the decision of that court.

This subsection applies to the manner of judicial review of a decision by the Board, but does not require that Fazio appeal the DETF determination to the Board.

¶ 10. DETF has brought to our attention no other sections in Wis. Stat. ch. 40, and we have located none, that are similar to Wis. Stat. § 801.02(7)(b) or that might reasonably be interpreted in the same way. We therefore conclude that ch. 40 does not foreclose the application of exceptions to the exhaustion of administrative remedies doctrine that Wisconsin courts have employed, and we now turn to that body of law.

¶ 11. Generally, where a statute sets forth a procedure for review of an administrative action and for judicial review of the administrative decision, the courts will consider that remedy exclusive and require that it be employed before other remedies. Nodell Inv. Corp. v. City of Glendale, 78 Wis. 2d 416, 422, 254 N.W.2d 310 (1977). This rule is

a doctrine of judicial restraint which the legislature and the courts have evolved in drawing the boundary line between administrative and judicial spheres of activity. The premise of the exhaustion rule is that the administrative remedy (1) is available to the party on [the party's] initiative, (2) relatively rapidly, and (3) will protect the party's claim of right.

Id. at 424. Courts do not apply the rule when they determine that the reasons supporting the exhaustion rule are lacking, such as where the administrative agency would not have afforded the party adequate relief because the agency did not have the authority to provide the remedy sought. Id. at 426 (discussing Kmiec v. Town of Spider Lake, 60 Wis. 2d 640, 645, 211 N.W.2d 471 (1973), in which party seeking to challenge constitutional validity of zoning ordinance was allowed to bring action for declaratory judgment; doctrine of exhaustion of administrative remedies held inapplicable since board in that case had no authority to declare unconstitutional ordinance enacted by legislative body from which board derived its existence).

¶ 12. Whether the doctrine of exhaustion of administrative remedies applies in this case depends on whether the Board has the authority, as DETF claims it does, to order DETF to pay Fazio interest on the lump-sum benefit she received. If the Board does not have this authority, then the administrative remedies available to Fazio are not adequate and one of the principle premises for application of the doctrine is lacking. Because an administrative agency has only those powers that have been expressly granted by the legislature or are necessarily implied from the statute under which it operates, Jackson v. Employe Trust Funds Bd., 230 Wis. 2d 677, 688, 602 N.W.2d 543 (Ct. App. 1999), we examine the statutes that govern DETF and the Board.

¶ 13. Wisconsin Stat. § 40.73 specifies the manner for determining the amount of death benefits and does not make any provision for paying interest on that amount when the death benefit is not paid on the date payable. Fazio and DETF appear to agree that there is no other section in Wis. Stat. ch. 40 that expressly provides for payment of interest on the principal amount due. The next question is whether any section implicitly gives DETF the authority to pay that interest. Neither party points to one and we have discovered none. Next, we inquire whether the Board has the authority to order DETF to make such a payment. Fazio says no, and points out that the Board's authority to make any adjustments in the amounts prescribed by statute for equitable reasons is expressly limited by Wis. Stat. § 40.03(l)(a) to three situations: (1) a participant has a combination of full-time and part-time service, (2) a participant has a change in annual earnings period during the high years of earnings, or (3) a participant has previously received an annuity which was terminated. Fazio asserts, and DETF does not dispute, that these three situations do not include payment of the interest Fazio seeks.

¶ 14. DETF argues, nonetheless, that the Board does have that authority under Wis. Admin. Code § ETF 11.12(l)(d), which provides in relevant part:

(1) FORM. Final decisions, and proposed decisions to be considered by the board, shall be in writing and include:
(d) An order stating either that the department determination is affirmed or, where the department determination is not affirmed, remanding the matter to the department with instructions to take necessary action on the matter, consistent with the final decision.

We do not agree with DETF's reading of this regulation. This regulation permits the Board to order DETF to take the steps necessary to implement the Board's decision, but it does not address the authority of the Board to make any particular decision. It is not reasonable to read this regulation to give the Board the authority to order DETF to implement a final decision that the Board does not have the authority to make. We have already concluded that no statute gives either DETF or the Board the authority to pay Fazio interest on her lump-sum benefit. Our examination of the other sections of Wis. Admin. Code ch. ETF 11 persuades us that the Board does not have the authority to order DETF to make any payments not authorized by statute.

¶ 15. Wisconsin Admin. Code § ETF 11.03(2) addresses "Limitations on Board Remedies." Paragraph (a) is the same as Wis. Stat. § 40.03(l)(a). See supra footnotes 6-7. Paragraph (b) provides:

(b) A right or benefit under ch. 40., Stats., may not be granted by the board as the result of an appeal unless under the facts proven and the provisions of ch. 40, Stats., and other applicable law, the appellant is eligible for the right or benefit, and meets all qualifications established by statute, administrative rule and any applicable contract authorized by ch. 40, Stats., as of the commencement of the appeal. This paragraph applies regardless of any allegation that an employe or agent of the department or member or agent of the board gave erroneous or mistaken advice or was negligent in the performance of any alleged duty to the aggrieved person.

(Footnote added.) This paragraph indicates an intent to limit the Board's authority to consideration of statutes, rules, and contracts, and this is reinforced by the reference in other sections that describe the respective roles of the hearing examiners and the Board in interpreting and applying statutes, rules, and contracts. In addition, the regulations specify mandatory standards for the Board's final decisions, which include: "(c) Specific statutory authorization. The final decision may not order or authorize any action solely to further a purpose of the public employe trust fund unless the action is specifically authorized by a provision of ch. 40, Stats., other than s. 40.01(2), Stats." Wis. Admin. Code § ETF 11.12(2)(c). The Board is specifically authorized to interpret ambiguous statutes, § ETF 11.12(3), and is also specifically directed to give "great weight" to the written opinion of the attorney general and the interpretation of the department, and "controlling weight" to the department's administrative rule interpreting a statute, § ETF 11.12(4). Reading these regulations together, the only reasonable construction is that the Board has no authority to order payments that are not authorized by Wis. Stat. ch. 40 or by rules or contracts authorized by that chapter.

¶ 16. We conclude that, if Fazio is entitled to interest on the lump-sum benefit, entitlement is not conferred by Wis. Stat. ch. 40, but either by the common law doctrine of unjust enrichment or by Wis. Const. art. I, § 13. We also conclude that the Board does not have the authority under ch. 40 or the implementing regulations to decide whether Fazio is .entitled to the relief she seeks under either the common law doctrine or the Wisconsin Constitution.

¶ 17. Recognizing that Fazio claims entitlement to relief not under Wis. Stat. ch. 40 but under the Wisconsin Constitution, DETF points to Hensley and Hogan v. Musolf, 163 Wis. 2d 1, 12, 471 N.W.2d 216 (1991), as examples of other cases in which a court has required exhaustion even where the issue the plaintiff sought to raise was a constitutional issue. According to DETF, these cases show that Fazio's remedy here is not inadequate simply because she is claiming she is entitled to interest on the lump sum on constitutional grounds. As we have already explained, the court's conclusion in Hensley that the plaintiff had to raise all issues in the administrative proceedings — including the constitutional invalidity of DOC rules regardless of whether DOC had the authority to declare them unconstitutional — was based on language in the PLRA that does not appear in ch. 40. Hensley, 2001 WI 105 at ¶ 9.

¶ 18. Hogan also does not support the DETF's position, because the court's rejection there of the taxpayers' futility argument was based on the statutory authority of the Department of Revenue (DOR) and the Tax Appeals Commission. The taxpayers contended that the administrative remedies available to them were futile because neither DOR nor the commission had the authority to declare the tax statutes unconstitutional or to award damages against the defendant in their individual capacities. The Hogan court con-eluded that DOR and the commission had the authority to decide whether the continued application of the Wisconsin taxing scheme violated federal law or the constitution, because the United States Supreme Court recently had held that the taxing scheme of another state that was substantially similar to Wisconsin's did violate federal law or the constitution. See Hogan, 163 Wis. 2d at 21. The court also observed that DOR and the commission had the authority to grant a refund to the plaintiffs on the basis of the federal statute without deciding the constitutional issue. Id. at 22. In contrast, in this case the Board does not have the statutory authority to decide whether Fazio's property has been taken without just compensation and to award her just compensation if it has been.

¶ 19. DETF asserts that the purposes of the general rule of exhaustion of administrative remedies are served in this case if the Board has the opportunity to review Fazio's appeal. According to DETF, in the event of an adverse decision by the Board, the court on certiorari "will have the benefit of a fuller record once the agency has had an opportunity to address Fazio's claims and explain this reasoning." However, DETF does not explain more specifically how the record after an adverse Board decision will aid a reviewing court in a resolution of Fazio's claims. Since the Board does not have the authority to decide Fazio's claims for unjust enrichment or an unconstitutional taking, we fail to see how its explanation of that lack of authority will aid a reviewing court in resolving those claims.

¶ 20. We conclude that an appeal to the Board is an inadequate remedy for Fazio because the Board does not have the statutory authority to award her interest based either on a claim of unjust enrichment or a claim of taking under Wis. Const. art. I, § 13. We therefore conclude that the doctrine of exhaustion of administrative remedies does not require that she appeal DETF's determination to the Board before filing this action.

¶ 21. DETF also appears to suggest that sovereign immunity is an alternative basis for affirming the trial court's dismissal. However, the taking clause, Wis. Const. art. I, § 13, is a self-executing waiver of sovereign immunity. Wisconsin Retired Teachers Ass'n v. Employe Trust Funds Bd., 207 Wis. 2d 1, 28, 558 N.W.2d 83 (1997). For this reason, when the legislature has not provided specific procedures for the recovery of just compensation following a taking, an aggrieved person may proceed directly under art. I, § 13. Id. at 29. Therefore, the doctrine of sovereign immunity does not provide an alternative basis on which to affirm the circuit court's dismissal as to the taking claim.

¶ 22. In summary, we reverse the circuit court's order dismissing the complaint because we conclude that Fazio was not required to exhaust her administrative remedies before filing this action. As to the taking claim, we hold that sovereign immunity does not provide an alternative basis for affirming dismissal of that claim. We do not decide whether there are other grounds for dismissal of either the taking claim or the unjust enrichment claim.

By the Court. — Order reversed and cause remanded.

       Wisconsin Const. art. I, § 13 provides:
      The property of no person shall be taken for public use without just compensation therefor. ■

       The complaint named both DETF and DETF Secretary Eric Stanchfield as defendants. We refer to both as DETF unless there is a need to distinguish between the two.

       DETF also moved to dismiss on the grounds that sovereign immunity barred the unjust enrichment claim, no taking occurred because Fazio had no right to interest on a lump-sum benefit, and failure to file a notice of claim as required by Wis. Stat. § 893.82 (1999-2000) barred the unjust enrichment claim against Stanchfield. The trial court did not rule on these grounds.

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

       Fazio's letter of appeal to the DETF Board, which was attached to the affidavit, explained that the appeal was made on behalf of Fazio and all others similarly situated and was "filed in the alternative and in the event [the court in this action]... is determined not to have primary jurisdiction over this matter... ." The letter asked that proceedings on the appeal be stayed until the court in this action determined whether the matter had to be remanded to the Board. At the hearing on the motion to dismiss in this action, held on August 17, 2001, Fazio's counsel advised the court that in the administrative proceeding the parties were briefing her request for a stay.

       Wisconsin Admin. Code § ETF 11.03(2)(a) provides:
      (2) Limitations on board remedies. Limitations on the boards' powers include the following:
      (a) The deferred compensation board, group insurance board, teachers retirement board and Wisconsin retirement board have no equity powers. The employe trust funds board has no equity powers, except as provided under s. 40.03(l)(a), Stats., to correct inequity in the computation of the amount of an annuity or death benefit resulting from a participant's combination of full-time and part-time service, a change in annual earnings period during the high years of earnings or the previous receipt and termination of an annuity.
      This is the same as Wis. Stat. § 40.03(l)(a). See footnote 7.

       Wisconsin Stat. § 40.03(1) (a) provides:
      Powers and duties. (1) Employee trust funds boars. The board:
      (a) Shall authorize and terminate the payment of all annuities and death benefits, except disability annuities, in accordance with this chapter and may adjust the computation of the amount, as provided by this chapter, as necessary to prevent any inequity which might otherwise exist if a participant has a combination of full-time and part-time service, a change in annual earnings period during the high years of earnings or has previously received an annuity which was terminated.

        See Hahner v. Board of Educ. Wis. Rapids, 89 Wis. 2d 180, 192, 278 N.W.2d 474 (Ct. App. 1979) ("Attorney General's opinion is only entitled to such persuasive effect as the court deems the opinion warrants.").

       The doctrine of prior resort, or primary jurisdiction, is distinct from the doctrine of exhaustion of administrative remedies, álthough they are" 'complementary parts of a general principle which ordinarily serves to preclude judicial consideration of a question while there remains any possibility of further administrative action.'" Nodell Inv. Corp. v. City of Glendale, 78 Wis. 2d 416, 427 n.13, 254 N.W.2d 310 (1977) (citation omitted). The doctrine of prior resort applies when there has been a total absence of any formal proceedings before the agency. Id. The parties both appear to agree that the doctrine of exhaustion of administrative remedies, rather than that of prior resort, applies in this case, and we agree. Fazio made a request to DETF for the interest and DETF made a determination she was not entitled to it under the applicable statute. She thus took the first step in the administrative process to obtain the interest.
      We recognize that Fazio has also filed an appeal of the DETF determination to the Board, and we have considered whether that fact in and of itself is a reason to require that she complete the appeal before the Board. However, it is evident that Fazio filed that appeal because if she did not do so within ninety days of the DETF decision, she would have lost the opportunity ever to do so; and if the final decision in this action is that she may not bring this action without first exhausting her administrative remedies, she would be left with no remedy. According to Fazio's counsel's comments to the circuit court, she was seeking a stay of the appeal to the Board pending a resolution of the exhaustion issue in this action. We do not know the current status of that request. For purposes of our decision, we do not consider it relevant that she appealed the DETF determination to the Board; our analysis would be the same had she not done so. On the other hand, we do not address in this decision whether, if the proceedings on Fazio's appeal to the Board had concluded with a decision by the Board, Wis. Stat. § 40.08(12) would preclude this action.

       In Benson v. Gates, 188 Wis. 2d 389, 396, 525 N.W.2d 278 (Ct. App. 1994), we applied the futility exception in an action seeking benefits under Wis. Stat. ch. 40. We concluded that public school teachers seeking "creditable service" under Wis. Stat. § 42.245(1) (1965) did not have to first resort to and exhaust their administrative remedies before bringing their action for declaratory and other relief because DETF and the Board had already decided and codified in their regulations the legal issue the teachers wanted the court to decide. See id. at 400-01. We agree with DETF that this case is factually distinguishable because here there is no regulation that decides Fazio's claim for interest adversely to her.

       Fazio's lump-sum benefit was computed under Wis. Stat. § 40.73(l)(c), which provides in part:
      Death benefits. (1) The amount of the Wisconsin retirement system death benefit shall be:
      (c) Upon the death of a participating employee who, prior to death, met the applicable minimum age under s. 40.23(l)(a) (intro.), if the beneficiary to whom a death benefit is payable is a natural person, or a trust in which the natural person has a beneficial interest, the present value on the day following the date of death of the life annuity to the beneficiary which would have been payable if the participating employee had been eligible to receive a retirement annuity, computed under s. 40.23 or 40.26, beginning on the date of death and had elected to receive the annuity in the form of a joint and survivor annuity providing the same amount of annuity to the surviving beneficiary as the reduced amount payable during the participant's lifetime.

       The secretary of the department has the authority to promulgate rules implementing Wis. Stat. ch. 40, with the approval of the Board and certain other entities. Wis. Stat. § 40.03(l)(m) and (2)(i).

       Wisconsin Admin. Code § ETF 11.03(2)(bm) imposes another limitation on the Board's authority:
      (bin) There is no remedy in an appeal before a board based on a theory of undue influence. Regardless of proof offered by an appellant, the board may not change or void any choice, designation, application or other action of a participant, annuitant, beneficiary, insured, or deferrer on the grounds that person was acting under the undue influence of another. Nothing in this paragraph shall be construed to prevent an aggrieved party from bringing an action against the beneficiary of the alleged undue influence in a court of competent jurisdiction and seeking any remedy available under the law.

       Wisconsin Admin. Code § ETF 11.08(2)(e) provides
      (2) The hearing examiner shall prepare and issue a dismissal, in the form and manner required by this chapter for a final decision, under the following circumstances:
      (e) There is no material issue of fact or law and under the undisputed material facts and law, the appellant is ineligible for the claimed right or benefit or fails to meet all the qualifications for the claimed right or benefit established by statute, administrative rule and applicable contract.
      Wisconsin Admin. Code § ETF 11.08(5) provides:
      (5) The hearing examiner shall not exercise final decision-making authority under sub. (2)(c), (d) or (e), (3) or (4), if the decision necessarily involves the interpretation of a statute, rule or clause of a contract authorized under ch. 40, Stats., which the examiner finds to be ambiguous. The' hearing examiner shall prepare a proposed decision and allow the board to make the necessary interpretation.
      Wisconsin Admin. Code § ETF 11.09(1) provides:
      (1) Contents. The proposed decision shall be in the same form and comply with the same standards as is required for a final decision. If the hearing examiner concludes that the decision may depend upon the interpretation of an ambiguous statute, the proposed decision shall include the hearing examiner's basis for concluding that the statute is ambiguous as a matter of law and a recommended interpretation giving the same weight to the interpretations of the department, attorney general and administrative rules as is required for a final decision.

       The first issue the court in Hogan addressed was whether federal law permitted Wisconsin to require that plaintiffs exhaust state remedies in tax matters before bringing an action under 42 U.S.C. § 1983 alleging that certain state tax statutes violated the supremacy clause of the United States Constitution. Hogan v. Musolf, 163 Wis. 2d 1, 12, 471 N.W.2d 216 (1991). The court decided that, although the general rule under federal law was that a state may not bar a plaintiff from bringing an action under § 1983 because of failure to exhaust administrative remedies, there was an exception for challenges to the administration of tax statutes. Id. Under this exception, the state could require plaintiffs to exhaust administrative remedies before bringing § 1983 actions if their administrative remedies were plain, adequate, and complete. Id. at 12-19. The court decided that the administrative remedies available to the taxpayer met that requirement. Id. at 20. The court concluded Wisconsin law did require plaintiffs challenging administration of taxing statutes to exhaust available administrative remedies before commencing a § 1983 action. Id. at 26-27. The court based this conclusion on the statutory language in Wis. Stat. §§ 73.01(4) and 73.015. Id. at 24-25. Section 73.01(4) provided that "[s]ubject to the provisions for judicial review contained s. 73.015, the commission shall be the final authority for the hearing and determination of all questions of law and fact arising under sub. (5) and ... subch. XIV of ch.71...." Hogan, 163 Wis. 2d at 24. Section 73.015(1) provided in part that "no person may contest, in any action or proceeding, any matter reviewable by the commission unless such person has first availed himself or herself of a hearing before the commission ... ." Hogan, 163 Wis. 2d at 25.

       Wisconsin Const. art. W § 27 provides:
      The legislature shall direct by law in what manner and in what courts suits may be brought against-the state.

       For this reason, too, the failure to file a notice of injury under Wis. Stat. § 893.82 does not apply to a taking claim. Wisconsin Retired Teachers Ass'n v. Employe Trust Funds Bd., 207 Wis. 2d 1, 29-30, 558 N.W.2d 83 (1997).

       DETF asks that we affirm the court's dismissal on the alternative grounds that the complaint fails to state a claim for a taking, and that the unjust enrichment claim against Stanch-field is barred because of failure to comply with the notice of claim requirement in Wis. Stat. § 893.82(3). DETF raised these issues in its motions to dismiss. However, a full briefing and a hearing on these issues did not occur before the court dismissed the action on the grounds that formed the basis for this appeal. We therefore do not address these issues. Nothing in our decision precludes the trial court from considering these and other grounds to dismiss that we do not address in this decision.


author: CANE, C.J.

text:
    Mark C. Laska and Katherine E. Laska, Plaintiffs-Respondents, v. Mary Jane Laska, Defendant-Appellant.
    Court of Appeals

      No. 02-0022-FT.

      Submitted on briefs March 21,2002. —
    Decided April 30, 2002.

    2002 WI App 132
    (Also reported in 646 N.W.2d 393.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Rodney J. Mason of Chandler & Mason, Ltd. of St. Paul, MN.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of R. Michael Waterman of Mudge, Porter, Lundeen & Seguin, S.C. of Hudson, and Zelle, Hofmann, Voelbel, Mason & Gette LLP of Minneapolis, MN.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 7-26-02.

   CANE, C.J.

¶ 1. Mary Jane Laska appeals an order enforcing a mediation agreement. She argues that the trial court misinterpreted Wis. Stat. § 807.05 when it enforced the agreement absent her signature. We agree and reverse the order.

BACKGROUND

¶ 2. Mark Laska and Katherine Laska are the adult grandchildren of Richard Laska, Sr., who died on October 5, 1998. Mary Jane was married to Richard from May 15, 1990, to the date of his death.

¶ 3. Mark and Katherine brought this action alleging that Mary Jane had wrongfully interfered with their anticipated inheritance from Richard's estate. The trial court's February 28, 2001, scheduling order set May 14, 2001, for a jury trial. During a May 4 mediation proceeding, the parties reached an agreement that was reduced to a mediator's memorandum. This memorandum was not signed by any of the parties or their attorneys as it was anticipated that they would later sign a settlement agreement. In a letter dated May 7, the mediator stated:

I am writing to confirm the settlement that was reached at the time of the mediation session .... It was agreed that [Mary Jane] will pay to [Mark and Katherine] the sum of $135,000.00. In addition [Mary Jane] will abandon, relinquish, release or otherwise give up any interest she may have in the revocable trust. In other words she will not receive any further payments from that trust. It was agreed that [Mary Jane] will make no claim against the will or the estate or any other type of claim against [Mark and Katherine], The parties will execute mutual releases. If I have left anything out or misstated anything please let me know.

¶ 4. The same day, Mark and Katherine's attorney faxed and mailed a similar memorandum of agreement to Mary Jane's attorney. On May 9, Mark and Katherine's attorney mailed a draft of the settlement agreement to Mary Jane's attorney. Also on May 9, Mary Jane's attorney sent a letter to the court, stating: "The parties have agreed to settle this case. Therefore, the trial which was scheduled for the week of May 14, 2001 may be canceled. Someone will send you a Stipulation and Order of Dismissal when the settlement has been completed." On May 14, Mark and Katherine's attorney mailed a "Disclaimer of Interest in the Revocable Trust of Richard Laska" to Mary Jane's attorney for her signature. Mary Jane did not sign any of these documents.

¶ 5. On June 13, Mary Jane's attorney advised the court that Mary Jane refused to sign the settlement agreement and disclaimer and that a new scheduling order and trial date were needed. In response, Mark and Katherine filed a motion to enforce the settlement agreement.

¶ 6. The trial court determined that the parties had entered into a stipulation pursuant to Wis. Stat. § 807.05 and that it was "subscribed" by their conduct. The trial court observed that public policy favors mediation of disputes and that the trial court has inherent authority to control its calendar. Because the court had removed the trial date from its calendar without objection after being advised of the settlement, it ordered that the mediation agreement was to be enforced.

DISCUSSION

¶ 7. Mary Jane argues that the trial court misinterpreted the meaning of the term "subscribed" provided in Wis. Stat. § 807.05. We agree. This issue is resolved by resort to statutory language, an issue of law we decide de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. Id. at 406. We first look to the language of the statute itself. Id. If the meaning of the statute is clear on its face, we apply it as written. Id.

¶ 8. Wisconsin Stat. § 807.05 reads:

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. (Emphasis added.)

¶ 9. Wisconsin Stat. § 807.05 is an exception to the usual rule that oral contracts are binding. Adelmeyer v. WEPCO, 135 Wis. 2d 367, 400 N.W.2d 473 (Ct. App. 1986). It "seeks to prevent disputes and uncertainties as to what was agreed upon." Id. at 372 (citation omitted). The statute adds requirements for enforceability of an otherwise valid oral agreement when the agreement is reached in the course of a claim that is in the process of adjudication. Kocinski v. Home Ins. Co., 154 Wis. 2d 56, 67, 452 N.W.2d 360 (1990). "An oral contract reached by stipulation in the course of court proceedings is unenforceable unless formalized in the way required by sec. 807.05." Id. at 67-68.

¶ 10. The requirement that a name be "subscribed" is to be distinguished from the requirement that there be a personal handwritten "signature." Id. at 68. A rubber-stamped signature of a parties' attorney "satisfied the requirement that the writing under sec. 807.05, Stats., must be 'subscribed' by the party" or the party's attorney. Id. at 64.

¶ 11. Mark and Katherine maintain that the trial court correctly determined that "subscribed" should be given an expansive meaning. They contend that because Kocinski does not require a handwritten signature, a party may "subscribe" to an agreement by his or her conduct. They also claim that Mary Jane's request to have the trial date cancelled and her lack of response to opposing counsel's correspondence and memorandum detailing the mediation agreement expressed her approval of the terms of the settlement. They note that one of the dictionary definitions of "subscribe" is to express concurrence or approval. We are unpersuaded.

¶ 12. We are satisfied 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. Kocinski, 154 Wis. 2d at 67-68 ("An oral contract reached by stipulation in the' course of court proceedings is unenforceable unless ’formalized1 in the way required by sec. § 807.05."). Although the signature need not be handwritten, the term "subscribed" cannot be read to dispense altogether with a written indication of assent. To give such an expansive meaning to the term would frustrate the purpose of the statute, which is to give certainty to what was agreed upon.

¶ 13. Mark and Katherine also contend that the court has the inherent power to control its own dockét, citing City of Sun Prairie v. Davis, 226 Wis. 2d 738, 595 N.W.2d 635 (1999), and when a court is advised that a case has been settled, it should be able to remove the case from its calendar. They argue that Wis. Stat. § 807.05 cannot have been intended to permit one party to unilaterally control the court's calendar by asking to have a trial date removed from the court's calendar and then repudiating a settlement agreement.

¶ 14. Despite the court's understandable frustration, we conclude that an expansive reading of Wis. Stat. § 807.05 is not required. The court can prevent parties from manipulating its calendar by requiring their agreement to be formalized under § 807.05 before canceling a scheduled trial date. We recognize that public policy encourages settlement of disputes through mediation but, at the same time, legislative policy choices as statutorily expressed must stand. See Davis, 226 Wis. 2d at 755 ("It is for the legislature to make policy choices, ours to judge them based not on our preference but on legal principles and constitutional authority."). Because § 807.05 does not provide for a party to "subscribe" to an agreement through general conduct, Mary Jane is not bound by the mediation agreement.

By the Court. — Order reversed and cause remanded for further proceedings.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All statutory references will be to the 1999-2000 version.

         See Webster's Third New Int'l Dictionary 2278 (unabr. 1993), which provides in part:
      1 : to write (as one's name) underneath ; sign (one's name) to a document 2 a : to sign with one's own hand : give consent to or bind oneself to the terms of (something written) by appending one's name b : to attest by appending one's name . .. c obs : to sign away: resign, yield d (1): to promise to give . . . (2): contribute . .. 3 chiefly Brit: to give support to or concur in : favor, sanction ....