author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Glenn F. Schwebke, Defendant-Appellant.

    Court of Appeals

      No. 99-3204-CR.

      Submitted on briefs November 14, 2000.

    Decided February 21, 2001.

    2001 WI App 99
    (Also reported in 627 NW.2d 213.)

      On behalf of the defendent-appellant, the cause was submitted on the briefs of Keith A. Findley of Frank J. Remington Center, University of Wisconsin Law School, Madison. There was oral argument by Keith A. Findley.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Jeffrey J. Kassel.

    Before Nettesheim, Anderson and Snyder, JJ.

      Petition to review granted.

   ANDERSON, J.

¶1. Glenn F. Schwebke appeals from a judgment of conviction on six counts of disorderly conduct contrary to Wis. Stat. § 947.01 (1999-2000). Schwebke contends that as a matter of law his conduct of mailing copies of newspaper clippings, letters and 45 RPM recordings to three individuals does not constitute disorderly conduct. Additionally, he argues that the circuit court erred in imposing consecutive terms of probation. We disagree with Schwebke's first contention, and affirm his disorderly conduct conviction. However, we agree with Schwebke's second argument regarding error in his sentencing and therefore reverse the imposition of consecutive terms of probation.

Relevant Facts

¶ 2. In 1996, Roberta Twohig, as well as Twohig's sister, Patty Marcinko, and Twohig's former boyfriend, Thomas Lamke, received anonymous mailings. In May 1996, Twohig received two manila envelopes: one mailed to her home and one mailed to her workplace. The mailing address on both envelopes was stenciled, both envelopes bore thirtieth birthday greetings (Twohig's birthday is May 9th) and neither envelope bore a return address. Inside each of the envelopes was an unsigned stenciled letter. The letter sent to Twohig's home read:

THE HIGH SCHOOL YEARS ROBBIE, NO DOUBT A VERY FINE YOUNG LADY
YOU WOULD HAVE MADE A LOVELY MISS TEEN WISCONSIN AND FAIREST OF THE FAIR
I'M SURE YOU WERE VERY POPULAR WITH ALL THE GUYS AND GIRLS IN HIGH SCHOOL AND ARE WELL LIKED BY ALL YOUR STUDENTS AT BHS
I WILL ALWAYS LOVE YOU, ROBBIE

Along with this stenciled letter, the envelope contained about thirty newspaper clippings relating to Twohig's activities during her high school years: articles about 4-H awards, prizes won at the county fair, scholarships awarded, appearances in local theater productions, participation in the Fond du Lac County "Fairest of the Fair" competition, and the like.

¶ 3. The letter sent to Twohig's workplace stated:

THE COLLEGE YEARS ROBBIE WAS NO DOUBT A VERY INTERESTING YOUNG WOMAN
I'M SURE YOU WERE VERY POPULAR AT UW-FDL AND UW-0
YOU MUST HAVE HAD A LOT OF FUN IN FLORIDA WITH YOUR BUBBLY PERSONALITY
SPAIN MUST HAVE BEEN A REAL LEARNING EXPERIENCE ALSO
YOUR NEIGHBORS MUST THINK THAT YOUR [sic] A VERY NICE PERSON
I WILL ALWAYS LOVE YOU ROBBIE

Included in this envelope were approximately twenty-one newspaper clippings relating to Twohig's activities as a college student.

¶ 4. In response to receiving these two mailings, Twohig immediately contacted the police. In September 1996, Twohig received by mail another envelope at her workplace. The envelope had the same stenciled writing as the previous two mailings, with no return address. It was marked "[f]ragile, handle with care." Inside the envelope was a stenciled letter that said, "I want to share two of my favorite records with you[.] I love you Robbie[.]" The envelope also contained two 45 RPM records. One of the records was entitled "Roberta," Twohig's first name. The other record was entitled "Every Breath You Take." On both records the flip-side titles were blackened out, making it clear that Twohig was to give attention to the legible titles.

¶ 5. Twohig was familiar with the lyrics of "Every Breath You Take," a popular song in the 1980s. The song contains the following lyrics:

Every breath you take, Every move you make, Every bond you break, Every step you take, I'll be watching you, Every single day, Every word you say, Every game you play, Every night you stay, I'll be watching you....

¶ 6. In January 1997, four months after receiving the recordings, Twohig received an envelope at work. Like all of the previous mailings, the address was stenciled. This envelope contained two 45 RPM records and a stenciled note which read, "I will always love you Robbie." Again, each record had the flip-side titles blackened out; the legible titles were "I Wonder What She's Doing Tonight" and "Green-Eyed Lady."

¶ 7. Finally, in February 1997, near Valentine's Day, Twohig received an envelope at her workplace. The envelope bore a stenciled,address and a handwritten note reading "FRAGILE Open on Valentine's Day." Inside the envelope was a silk rose, a 45 RPM recording of the song "Hot For Teacher" and a blank piece of paper.

¶ 8. At the jury trial in May 1999, Twohig testified that she felt "[cjompletely violated. To have someone keep this meticulous track of what you did over half of your life ago, it's a feeling of violation that is almost indescribable." She said she was "extremely" upset and disturbed to receive the recording of "Every Breath You Take" because of "[t]he content of that song and 'You belong to me, I'll be watching you.' In my opinion whoever sent it was taking every step they could to make sure that I knew they still had an eye on me and still knew what I was doing."

¶ 9. Twohig testified that with each mailing she received, she became "more frightened, looking over my shoulder twice as many times, taking twice as many precautions. It was terrible to be in such fear day after day going to the mailbox . . . Twohig also explained how these mailings negatively affected many people:

Not only my family, my friends, my coworkers. Everyone was taking as many precautions as they could watching out after me, making sure that everything I received was legitimate. It was terrible. The stress that went with this was incredible. Jumping every time you go to the mailbox and seeing a manilla envelope wondering what's going to be in it. My parents were distraught. My sister and her family were absolutely besides [sic] themselves.

¶ 10. Twohig also testified that prior to the mailings at issue, she had been exposed to harassing conduct in the past and that it had gone on for many years. As a result of these circumstances, she had already made changes to her life-style. She had consulted web sites and experts on harassment for advice. She had moved several times within a few years. She had gotten caller ID. She had changed her phone number to an unlisted number. She had informed her family, friends and coworkers not to give out any information about her.

¶ 11. Twohig's former boyfriend, Thomas Lamke, an investigator with the Racine County Sheriffs Department, also received anonymous mailings. In July 1996, Lamke received unsolicited gay cruise literature at his home and workplace. Three months later, in October 1996, again at his workplace, Lamke received a manila envelope with a stenciled address and no return address. The envelope contained a blank piece of paper and two 45 RPM records. One flip-side title of each record was blackened out. The legible titles were "Where The Boys Are" and "San Francisco (Be Sure To Wear Some Flowers In Your Hair)." The mailing disturbed Lamke because, given the previous anonymous mailing, he inferred that the contents of this mailing were intended as a reference to homosexuality. Lamke reported these mailings to the police.

¶ 12. Lamke also testified that in the past, before either of the above mentioned mailings, unsolicited anonymous gay literature "showed up" at his home and workplace "against [his] will." At that time, he was subjected to "pretty substantial ridicule" from other members of the sheriffs department. And now again, mailings were causing him "problems at work." As a result, he said that he "had a much greater heightened sense of awareness as far as going about. . . everyday business not knowing who was out there and what's next."

¶ 13. Twohig's sister, Patty Marcinko, a teacher, also received anonymous mailings. On February 22, 1997, Marcinko received two manila envelopes, one sent to her home and one sent to the junior high school where she worked. Each envelope bore a stenciled address and a thirty-fourth birthday greeting; neither had a return address. The envelope sent to Marcinko's home contained a stenciled letter that read "UW-Oshkosh Days and Beyond.You would have made a good Miss Fond Du Lac/Reverend Anthony Scannell did an excellant [sic] job presiding over your wedding ceremony in 1994." Along with the letter, the envelope contained approximately twenty-five newspaper clippings relating to Marcinko, including articles about her wedding, family events, academic achieve-merits and her participation in local theater productions.

¶ 14. The envelope sent to Marcinko's workplace contained a stenciled letter which read: "Campbell-sport H.S. and UW-FDL Days/What do./Burger King, Hardees, The Exclusive Company & UW-0 Academic Staff/.All have in common?" Marcinko had worked at Burger King, the Exclusive Company and UW-Oshkosh. The envelope also contained approximately thirty-seven newspaper clippings relating to Marcinko's life as a high school student and college student. Marcinko felt threatened by the mailings and contacted the police. Her husband was very concerned because the harassment had now targeted his wife. Marcinko's parents, already worried about their daughter Robbie, found it "overwhelming" to have the harassment be aimed at their daughter Patty as well.

¶ 15. Twohig testified that she was equally disturbed by the mailings sent to Lamke and Marcinko:

Well, not only was I becoming a victim, but it was spreading out. It was rippling. It was almost like a ripple effect. People that I had had relationships with, that I loved, were all getting the same things that I was receiving. And their lives were being intruded upon to such a degree, to such an incredible degree.

Relevant Procedural History

¶ 16. On November 18, 1998, the State filed an amended criminal complaint charging Schwebke with six counts of disorderly conduct: four arising from his mailings to Twohig, one arising from a mailing to Lamke, and one arising from a mailing to Marcinko. Before trial, Schwebke signed a stipulation acknowledging that he had compiled and mailed each of the mailings referred to in the complaint.

¶ 17. At the close of the State's case, Schwebke moved for dismissal, arguing that the State's evidence was insufficient to prove disorderly conduct. The court denied the motion, finding sufficient evidence for a jury to find Schwebke guilty beyond a reasonable doubt of the charges of disorderly conduct. The jury convicted Schwebke on all six counts. The court imposed consecutive ninety-day jail sentences on each of the counts, but stayed the execution of sentence on counts four, five and six. On counts four, five and six, the court imposed and stayed ninety days' jail and ordered probation of four years consecutive to the jail sentences on the first three counts and consecutive to each of the other probationary terms.

Law

¶ 18. Wisconsin's disorderly conduct statute provides:

Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.

Wis. Stat. § 947.01.

Standard of Review for Sufficiency of the Evidence

¶ 19. The standard for reviewing the sufficiency of the evidence to support a criminal conviction is that a conviction will not be reversed unless the evidence, viewed most favorably to the State and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1989).

Analysis: Sufficiency of the Evidence

¶ 20. The evidence sufficiently supports the jury's finding that Schwebke violated Wisconsin's disorderly conduct statute. There are two elements to disorderly conduct: (1) the conduct must be of the type enumerated in the statute or similar thereto (i.e., "otherwise disorderly conduct") and (2) such conduct must be engaged in under circumstances which tend to cause or provoke a disturbance. State v. Zwicker, 41 Wis. 2d 497, 515, 164 N.W.2d 512 (1969); Wis JI—CRIMINAL 1900.

¶ 21. With regard to the first element, the State argues that Schwebke's mailings constituted "otherwise disorderly conduct." We agree with the State that a jury could reasonably find that Schwebke's conduct of sending these types of repeated, unwelcome and anonymous mailings rises to the level of "otherwise disorderly conduct." These mailings intimated that the sender had an obsessive interest in the lives of the three recipients. In the case of Twohig and Marcinko, the numerous newspaper clippings— covering their lives — indicated that the sender had been watching them for years. In Twohig's case, the four letters mailed to her referred to such things as her name, the color of her eyes and her occupation, and did so in a way that indicated that the sender was "hot for" her and was watching "every move" she made. In determining whether an act is disorderly conduct, we must look to see whether an average person would be reasonably offended. Zwicker, 41 Wis. 2d at 508. Twohig's testimony that she was "extremely" offended is more than reasonable; it is the expected reaction of someone in her situation.

¶ 22. With regard to the second element, we again agree with the State that Schwebke's mailings were sent under circumstances that tended to cause or provoke a disturbance. To meet the test for this element, it is not necessary that an actual disturbance result from the conduct in question. City of Oak Creek v. King, 148 Wis. 2d 532, 545, 436 N.W.2d 285 (1989). However, the best evidence that Schwebke engaged in disorderly conduct is that his conduct did cause a disturbance. See State v. Elson, 60 Wis. 2d 54, 60-62, 208 N.W.2d 363 (1973) (court relied on evidence that the defendant's conduct cáused agitated and disturbed reactions in onlookers to support the jury's finding that the conduct tended to cause or provoke a disturbance). WISCONSIN Stat. § 947.01 proscribes conduct in terms of results which can reasonably be expected therefrom, rather than attempting to enumerate the limitless number of antisocial acts which a person could engage in that would menace, disrupt or destroy public order. Zwicker, 41 Wis. 2d at 508. The predictable and the actual result of Schwebke's antisocial conduct was to menace and disrupt the lives of Twohig, her friends and family. Schwebke's conduct was significantly disturbing, permeating the lives of not only the recipients of his mailings but those who were close to the recipients. See id. (noting that the design of Wisconsin's disorderly conduct statute is to proscribe substantial intrusions which offend the normal sensibilities of average persons or which constitute significantly disturbing or abusive demeanor in the eyes of reasonable persons). Marcinko's husband became very concerned when Schwebke's harassment extended from his sister-in-law to his wife. Twohig and Marcinko's parents were "distraught" and the harassment was "overwhelming" to them. Lamke was "very worried" about Twohig and became "fearful for her safety" when he learned that she was receiving these mailings. Twohig summed it up:

Not only my family, my friends, my coworkers. Everyone was taking as many precautions as they could watching out after me, making sure that everything I received was legitimate. It was terrible. The stress that went with this was incredible. Jumping every time you go to the mailbox and seeing a manilla envelope wondering what's going to be in it. My parents were distraught. My sister and her family were absolutely besides [sic] themselves.

¶ 23. It is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation. State v. Maker, 48 Wis. 2d 612, 616, 180 N.W.2d 707 (1970). What constitutes disorderly conduct in one set of circumstances might not under another. Id.; King, 148 Wis. 2d at 542. In some other circumstances, mailing anonymous letters and newspaper clippings might not constitute disorderly conduct. However, we do not consider Schwebke's mailings in a vacuum. Instead, we consider his mailings in the context of the harassment previously endured by Twohig and Lamke. In addition, we note that Marcinko and Lamke, along with other friends and family, were aware of these more current mailings and of the previous harassment that Twohig had experienced. Twohig, in turn, knew that both her sister and her friend had now become targets of harassment and she testified that this greatly disturbed her. The mailings sent a clear message that someone was following the recipients' every move. That message not only "tended to cause a disturbance," it did in fact deeply disturb the lives of Schwebke's victims and those close to the victims. Again, it was reasonable for a jury to find that Schwebke's mailings were sent under circumstances that tended to cause or provoke a disturbance.

Standard of Review for Sentence Imposition

¶ 24. A court's authority in sentencing, including the power to impose consecutive sentences, is controlled by statute. Donaldson v. State, 93 Wis. 2d 306, 310, 286 N.W.2d 817 (1980). The determination of a court's statutory authority to impose a consecutive sentence is a question of law that we decide without deference to the trial court. State v. Lipke, 186 Wis. 2d 358, 363, 521 N.W.2d 444 (Ct. App. 1994).

Analysis: Imposition of Consecutive Terms of Probation

¶ 25. We agree with Schwebke's argument that the trial court erred at sentencing and therefore reverse the imposition of consecutive terms of probation. "The fashioning of a criminal disposition is not an exercise of broad, inherent court powers. ... If the authority to fashion a particular criminal disposition exists, it must derive from the statutes." Grobarchik v. State, 102 Wis. 2d 461, 467, 307 N.W.2d 170 (1981). The permissible terms of probation are set forth in Wis. Stat. §§ 973.09 and 973.15(2).

¶ 26. The court's sentencing authority in WlS. Stat. § 973.09(2) provides in pertinent part:

The original term of probation shall be:
(a) 1. Except as provided in subd. 2., for misdemeanors, not less than 6 months nor more than 2 years.
2. If the probationer is convicted of not less than 2 nor more than 4 misdemeanors at the same time, the maximum original term of probation may be increased by one year. If the probationer is convicted of 5 or more misdemeanors at the same time, the maximum original term of probation may be increased by 2 years.

¶ 27. Therefore, because Schwebke was convicted of six misdemeanors at the same time, the total allowable term of probation is four years. The statute accommodates the multiple counts of conviction by allowing a single, extended term of probation (four years instead of two years). Under the rules of statutory construction, we must give effect to the legislative intent. Zimmerman v. DHSS, 169 Wis. 2d 498, 504, 485 N.W.2d 290 (Ct. App. 1992). The statute does not authorize consecutive terms of probation. Because the multiple counts are already reflected in the extended maximum allowable probation term, it defies legislative intent to allow consecutive terms of probation.

¶ 28. Wisconsin Stat. §973.15(2) provides the statutory authority for making sentences consecutive to one another. Section 973.15(2)(a) reads:

Except as provided in par. (b), the court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously.

This statute does not authorize courts to make a term of probation consecutive to another term of probation.

¶ 29. Wisconsin Stat. § 973.09(1) provides that a "period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously." Again, this statute does not provide that a period of probation may be made consecutive to another term of probation. It is well established that a probationary term is not a sentence within the meaning of § 973.09(1). Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974); State v. Pierce, 117 Wis. 2d 83, 85, 342 N.W.2d 776 (Ct. App. 1983). Probation is not a sentence, but an alternative to a sentence, see State v. Gereaux, 114 Wis. 2d 110, 113, 338 N.W.2d 118 (Ct. App. 1983), and we have repeatedly held that probation cannot be made consecutive to probation. Pierce, 117 Wis. 2d at 85; Gereaux, 114 Wis. 2d at 113.

¶ 30. Thus, the trial court's reliance on State v. Thompson, 208 Wis. 2d 253, 559 N.W.2d 917 (Ct. App. 1997), for imposing consecutive terms of probation was misplaced. In Thompson, the trial court sentenced the defendant to two prison terms, and ordered that those terms be consecutive to each other and to any previously imposed sentence. Id. at 255. At the time of sentencing, the defendant had been placed in the intensive sanctions program as an alternative to his probation revocation in another case. Id. The trial court had imposed and stayed a four-year prison sentence, placing the defendant on probation for the previous conviction. Id. About two months after the sentencing in this case, the defendant's probation from the earlier case was revoked. Id. Thompson does not change the law against imposing consecutive terms of probation. Thompson allows the trial court to impose a sentence consecutive to a previously imposed and stayed sentence even if the defendant is placed on probation. Id. at 256. Thompson is distinguishable because in Schwebke's case the trial court did not order the probationary terms consecutive to a prior sentence, as did the trial court in Thompson; rather, it ordered the probationary terms consecutive to other terms of probation. Id. This was error on the trial court's part. Id.

¶ 31. Wisconsin Stat. § 973.13 provides that where a penalty is imposed in excess of that permitted by law, the excess portion of the sentence is void and the sentence is commuted without further proceedings. State v. Theriault, 187 Wis. 2d 125, 133, 522 N.W.2d 254 (Ct. App. 1994). Therefore, we commute Schwebke's sentence to the total allowable term of probation. Schwebke was convicted of six misdemeanors at the same time; the total allowable term of probation is four years. Wis. Stat. § 973.09(2). We reverse the imposition of consecutive probation terms and direct the trial court to enter an amended judgment of conviction accordingly.

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

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

       Schwebke was suspected of being the sender of these mailings because he had previously harassed Twohig and Lamke. The parties agreed not to place Schwebke's other acts of harassment into evidence. In order to provide context for the jury, the parties agreed to admit into evidence the fact that some of the victims had been previously harassed. However, they also agreed not to divulge that Schwebke was the source of that previous harassment.

       Schwebke argues that he was improperly charged. It is immaterial that the district attorney could have charged Schwebke under a different statute. The district attorney has almost unfettered discretion in selecting charges. State v. Krueger, 224 Wis. 2d 59, 67-68, 588 N.W.2d 921 (Ct. App. 1998).


source: Caselaw Access Project

author: DYKMAN, P.J. BEININGER, J.

license: Public Domain

text:
    In the Matter of the Guardianship and Protective Placement of Carl F. S.: Carla S., Appellant, v. Frank B., Respondent.
    Court of Appeals

      No. 99-3012.

      Submitted on briefs November 7, 2000.

    Decided March 1, 2001.
    2001 WI App 97
    (Also reported in 626 N.W.2d 330.)

      On behalf of the appellant, the cause was submitted on the briefs of Richard P. Carr of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C. of Milwaukee.
    On behalf of the respondent, the cause was submitted on the brief of Mark C. Skolos of Laabs, Skolos & Millis, LLP of Black River Falls.
    Before Dykman, P.J., Deininger and Leineweber, JJ.

       Circuit Judge Edward E. Leineweber is sitting by special assignment pursuant to the Judicial Exchange Program.

   DYKMAN, P.J.

¶ 1. Carla S., Carl S.'s daughter, appeals from an order authorizing her father's guardian to terminate Carl's life lease of his home. She complains of a lack of due process in the guardianship hearing, that the trial court's reasons for its order were insufficient, and that the trial court failed to consider other alternatives for the property other than termination of the life lease. The guardian contests Carla's substantive assertions and asserts that she does not have standing to bring this appeal. We conclude that Carla does have standing, both in the trial court and on appeal, and that the trial court erred by failing to consider other alternatives to terminating Carl's life lease agreement. We therefore reverse and remand for further proceedings.

¶ 2. In 1991, Carl and his wife, Genevieve, deeded their home to three of their children and a grandchild. The deed was contemporaneous with a lease, in which Carl and Genevieve leased the home for one dollar per year plus taxes, insurance, utilities, and repairs. The lease was for Carl and Genevieve's lifetimes, and provided that they could assign or sublease the property without the consent of their landlords.

¶ 3. Genevieve died in 1993, and Carl continued living in the home until 1997, when he suffered a stroke requiring hospitalization, nursing home care, and ultimately, a guardianship. In 1999, Carl's guardian petitioned the circuit court for an order authorizing the "termination of the Ward's interest in a certain lease." The reason the guardian gave for wanting this disposition was that Carl did not reside at the premises, and the guardian was obligated to pay real estate taxes and insurance on the property. Although the guardian cited WlS. STAT. § 880.19 (1997-1998) as authority for his petition, he did not explain why a gift was contemplated, when §880.19 authorizes only sales, mortgages, pledges, leases, or exchanges.

¶ 4. Before addressing the merits of Carla's appeal, we must consider the guardian's argument that Carla lacks standing to bring this appeal. He does not dispute that Carla had standing in the trial court, but asserts that on appeal she does not. At the hearing on the guardian's petition, the court questioned Carla's standing to contest the petition. The court ultimately concluded that Carla had standing after Carla's attorney pointed out that she was an "interested person," defined in Wis. Stat. § 880.01(6) as an adult relative of the ward. The court then heard evidence from the guardian, who testified that he was paying taxes and other costs associated with the home, but had never tried to rent the home. Carla testified that Carl wanted to return home, with skilled nursing care, whereas if the home were sold, that would not be possible. The trial court did not address the possibility of renting or selling Carl's interest in the home instead of gifting it to some of Carl's children and his grandchild, and concluded that the expense of maintaining the home when it was of no value to Carl was inappropriate. It granted the guardian's petition. Carla appeals.

¶ 5. Whether a person has standing to participate in an action or proceeding is a question of law that we review de novo. Wisconsin Hosp. Ass’n v. Natural Res. Bd., 156 Wis. 2d 688, 700, 457 N.W.2d 879 (Ct. App. 1990). Standing is not a question of jurisdiction, but of sound judicial policy. Wisconsin Bankers Ass'n v. Mutual Sav. & Loan Ass'n, 96 Wis. 2d 438, 444 n.1, 291 N.W.2d 869 (1980). The law of standing is complex and depends in large measure on the type of claim asserted. State ex rel. Parker v. Sullivan, 184 Wis. 2d 668, 678 n.6, 517 N.W.2d 449 (1994). The purpose of the requirement of standing is to ensure that a concrete case informs the court of the consequences of its decision and that people who are directly concerned and are truly adverse will genuinely present opposing petitions to the court. Id. The law of standing should not be construed narrowly or restrictively. State v. Iglesias, 185 Wis. 2d 117, 132, 517 N.W.2d 175 (1994). A party has standing when its claims are no more than a "trifle." State ex rel. First Nat'l Bank v. M & I Peoples Bank, 95 Wis. 2d 303, 309, 290 N.W.2d 321 (1980). Under Wisconsin's law of standing, we must determine whether the party seeking standing was injured in fact, and whether the interest allegedly injured is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Mogilka v. Jeka, 131 Wis. 2d 459, 467, 389 N.W.2d 359 (Ct. App. 1986).

¶ 6. The guardian has cited no authority holding that a party who has standing in the trial court can nonetheless lack standing on appeal. "Standing" is often referred to as "standing to sue," a trial court concept. See, e.g., Sandroni v. Waukesha County Bd., 173 Wis. 2d 183, 186, 496 N.W.2d 164 (Ct. App. 1992). Logic suggests that a litigant who has standing in a trial court would ordinarily have standing on appeal. There is an appellate requirement that the right to appeal is limited to persons "aggrieved" by a final judgment or order. Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 217, 418 N.W.2d 14 (Ct. App. 1987). A person may be an aggrieved party entitled to appeal from a judgment even though he or she is not a named party to the suit if he or she has a substantial interest adverse to the judgment either directly or by privity. Id. at 218. It would be strange indeed if a person who has been recognized by the legislature as an "interested person" and whose standing has been recognized by the trial court, would nonetheless lack standing to appeal the very determination for which he or she had standing in the trial court. And, as we will next explain, interested persons have been judicially recognized as having standing in appellate courts.

¶ 7. Wisconsin Stat. § 319.08 (1961), a predecessor to Wis. Stat. § 880.08, required only that notice of a guardian appointment proceeding be given to the proposed ward or his or her custodian, the proposed ward's presumptive or apparent heirs, and to such other persons as the court ordered. Nonetheless, in a case where an interested person sought unsuccessfully to collaterally attack a guardian's appointment, the court concluded: "This is not to say that the original determination of incompetency is not open to review. In addition to a direct appeal of the initial order, any interested party at any time during the guardianship may petition for a rehearing seeking revocation of the guardian-ward status." Bryn v. Thompson, 21 Wis. 2d 24, 27, 29, 123 N.W.2d 505 (1963) (emphasis added). We thus know that under § 319.08, the language of which gives even less protection to interested parties than § 880.08, an interested party had standing to appeal from a decision granting or denying a guardianship. And this holding was affirmed in Coston v. Joseph P., 222 Wis. 2d 1, 11-22, 586 N.W.2d 52 (Ct. App. 1998). In Coston, we addressed the issues raised by interested parties, and affirmed the trial court. Id. at 4-5, 11. Had we concluded in Coston that the appellants lacked standing, we would have dismissed the appeal.

¶ 8. There is little difference between WlS. STAT. § 880.08 and WlS. STAT. § 880.19(5) in their treatment of interested persons. Section 880.19(5) permits an interested person to petition the court for an order authorizing the guardian to sell a ward's property. Section 880.08 provides that an interested person may, under some circumstances, request a hearing at a place where the proposed ward may attend. But there is no mention in either statute of the right of an interested person to participate in the hearing, nor a directive that he or she may not. Neither statute specifically addresses whether Carla has standing. And this is unremarkable. Fewer than a dozen statutes address standing. Standing, therefore, is most commonly discussed as a common law concept.

¶ 9. Interested persons are not explicitly given participation rights by the language of Wis. Stat. § 880.08. And yet, we know that under Bryn, an interested person has standing to appeal an order issued pursuant to § 880.08. WISCONSIN STAT. § 880.19 is identical in its treatment of interested persons. The guardian does not explain why an interested person has standing to appeal an order issued pursuant to § 880.08 but not one issued pursuant to § 880.19. Bryn is persuasive authority that the opposite is true.

¶ 10. The guardian relies upon Coston, 222 Wis. 2d at 20-21, to conclude that Carla did not have the right to present and cross-examine witnesses, to demand a trial, to present evidence, or to raise eviden-tiary objections at the hearing. This is an overreading of Coston. While we noted in Coston, as we do here, that no statute provided for interested persons to demand a trial, present evidence, or raise evidentiary objections, we also said:

This is not to conclude, however, that circuit courts are foreclosed from allowing for the participation of interested persons. Depending on the facts and circumstances of a given case, a court could consider such participation to be very helpful, and could exercise discretion to allow interested persons to participate to the extent it would deem appropriate.

Id. at 21. It is therefore within a trial court's discretion to allow an interested person to participate in a Wis. Stat. ch. 880 guardianship proceeding. And that is what the trial court did here. The court could see no reason why Carla should be excluded from the motion hearing. And indeed, there was no reason. If Carla had been prohibited from asserting her view, the argument she wished to make would have been made by no one. And that is often true in guardianship proceedings. Without an interested party's ability to protest a guardian's gift of a ward's property, often there would be no check on a guardian's failure to follow the law. And as we have explained, Bryn and Coston hold that an interested person has standing to appeal from a ch. 880 order appointing a guardian. The statutory rights given to an interested party are similar whether we consider a WlS. STAT. § 880.08 guardianship petition or a WlS. Stat. § 880.19(5) petition to transfer a ward's property. We conclude that Carla has standing to appeal the trial court's order permitting the guardian to terminate Carl's lease.

¶ 11. We turn to the substantive issues. Carla asserts that the trial court failed to consider alternatives to terminating Carl's lease. An alternative that Carla suggested was that Carl should return home and save nursing home costs by using home care providers. On appeal, Carla argues that the trial court also should have considered renting Carl's home, thereby preserving it in a financially viable manner. She concludes that making a gift of Carl's property is contrary to Carl's best interests. The guardian does not complain that Carla failed to raise this issue in the trial court, but instead addresses Carla's issue on the merits. He claims that "the basis for allowing a Guardian to transfer the real property of a ward is clearly set forth in the Wisconsin Statutes," and that the transfer of the property was not a "gift" in the traditional or legal sense of the word. Because the parties have briefed the issue of a guardian's authority to make a gift of the ward's property, we will consider it. See Beard v. Lee Enterprises, Inc., 225 Wis. 2d 1, 17, 591 N.W.2d 156 (1999).

¶ 12. The guardian admitted that he had never tried to rent Carl's house to provide income for the guardianship estate. Common sense tells us that the opportunity to rent or sell a home for one dollar per year plus an amount equaling taxes, insurance, utilities, and upkeep is something of considerable value. Tenants almost always pay far more than that. The guardian does not tell us how his decision to gift Carl's property will benefit Carl, except to say that he did so to preserve the assets of Carl's estate. But that begs the question of whether there was a better alternative to gifting Carl's property.

¶ 13. While we agree with the guardian that Wis. Stat. § 880.19(5) provides for the "transfer" of a ward's property, that statute does not mention gifts as a method of transfer. Section 880.19(5) permits a guardian to "sell, mortgage, pledge, lease or exchange any property of the guardianship estate." Gifts are conspicuously absent from the statutory ways a guardian my transfer a ward's property. And in V.D.H. v. Circuit Court, 154 Wis. 2d 576, 584, 453 N.W.2d 882 (1990), the supreme court, in reviewing the powers of a guardian under § 880.19 held:

The guardian had no authority, however, to exercise any power over the ward's property which was not conferred by statute. Thus, the guardian of the estate could not make a gift of property of the estate on the ward's behalf or exercise on the ward's behalf those property rights denominated as "personal" to the ward....

We do not accept the guardian's assertion that the gift of the life lease was in reality not a gift. The guardian suggests that relieving Carl of the burden of paying real estate taxes, insurance, and maintenance is consideration for the transfer of the property. While that might be true if the property were unrentable or could not be sold, there is no record support for such conclusions. On remand, the trial court will be able to consider the appropriate disposition of Carl's property after considering the possible alternatives, and their costs.

¶ 14. We conclude that the trial court erred by not considering alternatives less drastic than a gift of Carl's property to his landlords. Having so concluded, we need not consider Carla's other reasons she believes that we should reverse the trial court's order.

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

BEININGER, J.

¶ 15. (dissenting). I conclude that Carla S. lacks standing to bring this appeal, and I therefore dissent.

¶ 16. In March 1997, the court appointed a guardian for Carl S. and ordered that he be protectively placed. Carl is now ninety years old, has suffered a stroke and other infirmities, and currently resides in a nursing home. In May 1999, his guardian petitioned the court for an order authorizing the guardian to terminate Carl's "life lease" in his former residence. The lease in question had been entered into by Carl and his late wife in 1991, after they deeded their residence to three of their children and a grandchild. Under its terms, Carl paid rent of $1.00 per year and was responsible for all real estate taxes, insurance, utilities, and "any other expenses related to the property," including repairs. The lease was for the joint lives of Carl and his wife. Carl's guardian averred that Carl was "unlikely to return" to the premises and that he was "without the financial wherewithal to make the payments required by the Lease Agreement."

¶ 17. Carl's daughter, Carla, although not among the persons who were owners/lessors of the property, objected to termination of the lease and petitioned the court "for the recognition of standing . . . regarding the Petition that has been filed by the Guardian." She appeared with counsel at the hearing on the petition. The guardian disputed whether Carla had standing to object to the petition, but the court concluded that there was no "reason why she ... should not be permitted to have some input into the issue of whether it's appropriate that the life lease be terminated" and ruled that Carla could "participate in the proceedings."

¶ 18. The guardian testified consistently with his averments in support of the petition. Carla's counsel was permitted to cross-examine the guardian, and Carla testified in opposition to the guardian's request. Her position was that the lease should not be terminated because her father might be able to return to his home if necessary home care could be arranged. The court concluded that medical reports in the record, and past recommendations of Carl's guardian ad litem regarding his placement needs, rendered the possibility of his returning to his home remote at best. The court also credited the guardian's testimony that, financially, it was in Carl's best interest, if not an imperative, that his obligations under the lease be terminated. Accordingly, the court entered an order authorizing the guardian to "take such steps as may be necessary to terminate" Carl's lease-hold interest in the residence.

¶ 19. A person may not appeal from a judgment unless he or she is aggrieved by it. This means that the judgment must bear directly and injuriously upon his or her interests; the person must be "adversely affected in some appreciable manner." Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 217-18, 418 N.W.2d 14 (Ct. App. 1987) (citations omitted). It is not necessary for standing in this court that an appellant has been "a named party to the suit," id. at 218, and we are to " 'liberally construe the law of standing.'" Koller v. Liberty Mut. Ins. Co., 190 Wis. 2d 263, 266, 526 N.W.2d 799 (Ct. App. 1994) (citation omitted). Nonetheless, "a strong desire to be heard by the court is not enough to establish standing" — a "direct effect" on one's "legally protected interest" is required. L.P. v. B.G., 177 Wis. 2d 424, 427, 501 N.W.2d 908 (Ct. App. 1993). The question presented is one of law. Id.

¶ 20. There can be no dispute that Carla is an "interested person" for purposes of the guardianship statutes. See Wis. Stat. § 880.01(6) (1999-2000) (" 'Interested person' means any adult relative or friend of a person to be protected under this subchapter . . . ."). We have recently considered in some detail the rights of "interested persons" with respect to guardianship and protective placement proceedings under chapters 880 and 55. See Coston v. Joseph P., 222 Wis. 2d 1, 11-22, 586 N.W.2d 52 (Ct. App. 1998). While we concluded that interested persons "can have important roles" in such proceedings, id. at 11, their rights to participate are not unlimited. Id. at 13. Specifically, we concluded that "[n]o statute provides for interested persons to demand a trial, present evidence, or raise evidentiary objections in guardianship and protective placement hearings — whether contested or uncontested." Id. at 21.

¶ 21. We noted in Coston, however, that "circuit courts are [not] foreclosed from allowing for the participation of interested persons" and that a court "could exercise discretion to allow interested persons to participate to the extent it would deem appropriate." Id. at 21. The trial court in this case did that very thing at the hearing on the guardian's petition to terminate the lease:

1 don't see any reason why [Carla]. . . should not be permitted to have some input into the issue of whether it's appropriate that the life lease be terminated, and so I'm going to treat her as if she has standing to appear in that proceeding at this time.

The court's discretionary decision to allow Carla's input and participation in the trial court proceedings, however, does not necessarily confer on her the necessary "legally protected" or "substantial" interest in the resulting order that would render her a person "adversely affected in some appreciable manner" by it.

¶ 22. The appellants in Coston were a sister and niece of the ward. Id. at 4. Their standing to appeal the order which determined Joseph to be incompetent, appointed a guardian of his person and estate, and protectively placed him, was apparently not challenged. We did not address the issue in our opinion. The present appeal, however, does not involve an order initially establishing a guardianship, appointing a guardian, or ordering protective placement. The present order is much more limited in scope. It deals only with the guardian's authority to dispose of the ward's interest in a lease.

¶ 23. I conclude that Carla was not aggrieved by the order authorizing her father's guardian to terminate the life lease. Once a guardian of the estate is appointed, the management and disposition of a ward's property is largely a matter for the guardian and the court to determine. Wis. Stat. § 880.19. Interested persons, as defined in Wis. Stat. § 880.01(6), may petition the court for an order directing the guardian to sell or otherwise dispose of property of a ward, may complain to the court of suspected fraud or mismanagement of a ward's estate, and may request the court to require a guardian to file accounts. See Wis. Stat. §§ 880.19(5)(b); 880.16(4); 880.252; Coston, 222 Wis. 2d at 12 n.8. When a guardian seeks the court's authority to dispose of a ward's interest in real estate, however, "interested persons" like Carla need not even be given notice of the request. Section 880.19(5)(b) ("The court, on the application of the guardian of the estate ... after such notice if any, as the court directs, may authorize the guardian to sell . . . any property of the guardianship estate upon such terms as the court may order."); WlS. Stat. § 786.09 ("Upon the presentation of [a petition for sale or encumbrance] . . . the presiding judge may proceed in a summary manner to inquire into the merits of such application ....").

¶ 24. In view of Carla's lack of a statutory right to participate in (or even to have notice of) the proceedings regarding the disposition of Carl’s leasehold interest, I conclude that Carla has not shown that the appealed order "bear[s] directly and injuriously upon" a legally protected interest of hers, or "adversely affec[ts]" her in "some appreciable manner." Tierney v. Lacenski, 114 Wis. 2d 298, 302, 338 N.W.2d 522 (Ct. App. 1983). Indeed, the issues she has attempted to raise in her brief relate to alleged violations of Carl's rights and interests —not hers. But Carl's rights and interests with respect to the subject matter of the instant proceedings are not hers to raise. As we noted in Coston, 222 Wis. 2d at 22, Carla has other avenues to pursue what she believes to be her father's best interests, for example, by seeking court review of his placement and of his competency status. Additionally, she may complain to the court regarding the guardian's management of her father's estate, and seek his removal.

¶ 25. Carla argues in her reply brief that the guardian waived the issue of her standing in the trial court. I first observe that a person's standing to appeal a circuit court order is a matter to be decided by this court, and I fail to see how any action or omission of a party in the circuit court could be deemed to foreclose our consideration of who has standing to appear before us. Moreover, I conclude that Carla's waiver argument mischaracterizes the record. She cites the following statement by counsel for the guardian: "[S]he is the daughter of the ward, so I suppose ostensibly there could be standing. . . ." The guardian's counsel, however, went on to say:

That would be the only way that I would see her as a person with any standing on this — this limited issue.
Conversely, I see there could be an interpretation where she doesn't have standing by virtue of the fact she's not a party to the lease agreement at all, and it's hard for me to understand how if the lease is terminated she would be impacted in any event. She certainly doesn't benefit by virtue of having the lease. If it's terminated I don't see how that's a detriment to her. And in that sense, I don't know how she would be impacted and I think that could be considered in determining standing also.

And later, counsel told the court, correctly:

I think 880 makes it pretty clear that the court has discretion on matters of transfer of real property interest of the ward to basically give notice to whomever the court directs. ... I think it's within the court's discretion to make that determination solely in your discretion as to whether [Carla] has any rights in this hearing or not.

In short, the issue of Carla's standing to appeal the present order has not been waived.

¶ 26. Because I conclude Carla lacks standing to appeal the instant order, I would dismiss the appeal. My recommended disposition would thus terminate the appeal before reaching the merits of any issue Carla attempts to raise, and I will not discuss those issues in this dissent. I note, however, that the majority's rationale for reversing and remanding finds little support in the record. First, Carla never testified that she believed the residence should be rented out, or that it profitably could be. She never cross-examined the guardian regarding the suitability of the property in question as a rental, or the possibility that a sub-tenant could be found who would pay rent sufficient to exceed Carl's obligations under the lease. Finally, she never argued to the court that it should require the guardian to attempt to obtain a renter or purchaser for the property, or that the disposition constituted a "gift," as the majority concludes. Her sole argument in the trial court for not terminating the lease was premised on the possibility of Carl's re-occupying the home. See State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995) ("We will not. . . blindside trial courts with reversals based on theories which did not originate in their forum.").

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       For example, Wis. Stat. § 184.07 gives nonprofit associations standing under some circumstances. And WlS. STAT. § 867.02(2) gives certain persons standing to petition for summary assignment of an estate. Though few in number, the existence of statutes conferring standing indicates that the legislature is aware of the concept of standing, and could have denied interested persons standing to appeal had it wished to do so.

       Coston v. Joseph P., 222 Wis. 2d 1, 20-21, 586 N.W.2d 52 ( Ct. App. 1998), relies upon R.S. v. Milwaukee County, 162 Wis. 2d 197, 209, 470 N.W.2d 260 (1991), for its conclusion that "only the proposed ward, the guardian ad litem, and advocacy counsel for the proposed ward have the right to present and cross-examine witnesses." We question whether R.S. supports this proposition. R.S. involved a dispute between a proposed ward and Milwaukee County, a guardianship petitioner. R.S., 162 Wis. 2d at 199-200. There were no other interested parties involved in R.S., and the dispute there concerned whether the petitioner or the proposed ward had the burden of providing the testimony of the physician whose report formed the basis for the petition. Id. at 199, 208. In that context the supreme court said: "We conclude that a more logical reading of sec. 880.33(2)(a)1 is that the proposed ward, attorney or guardian ad litem has the right to present evidence and to cross-examine witnesses, including the physician or psychologist reporting to the court." Id. at 208. The court then concluded that WlS. STAT. § 880.33 required the petitioner to produce the professional whose report formed the basis of the petition. Id. This conclusion, in the context of R.S., would not appear to support the proposition that only the proposed ward, the guardian ad litem, or advocacy counsel has the right to present and cross-examine witnesses. Because a proposed ward, a proposed guardian, or advocacy counsel has certain rights does not mean that others do not also have those rights.

       As a general proposition, there would be few people who would agree that giving their homes to another to avoid the payment of taxes, insurance, and maintenance would be a quid pro quo.

       Sale of Carl's interest would result in an estate per autre vie, an estate "for or during a period measured by another's life." Black's Law Dictionary 1156, 1248 (7th ed. 1999). The likely buyers would be Carl's landlords, or someone willing to purchase housing discounted for an uncertain length of tenancy.

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

       We noted in Coston that "interested persons" have a statutory right to petition for the appointment of a guardian and to nominate a guardian. Coston v. Joseph P., 222 Wis. 2d 1, 11, 586 N.W.2d 52 (Ct. App. 1998). This would certainly seem to give an interested person standing to appeal an order denying his or her petition or nomination, and it may be a sufficient basis on which to confer standing on a non-petitioning interested person to appeal an order which appoints a guardian at the request of another.
      I also acknowledge the supreme court's comment in Bryn v. Thompson, 21 Wis. 2d 24, 29, 123 N.W.2d 505 (1963), on which the majority relies, to the effect that "any interested party" may take "a direct appeal of the initial order" in a guardianship. I note, however, as does the majority, that the case was decided under statutes which preceded the present chapter 880, and further, that the right of any interested person to appeal an initial order appointing a guardian was not at issue in Bryn. (The appeal was of the final order approving the guardian's account; it was taken by the administrator of the deceased ward's estate; and the issue was whether the initial order establishing the guardianship could be collaterally attacked in an appeal of the final order terminating it.)
      Our conclusion in Coston that non-petitioning interested persons have no statutory right "to demand a trial, present evidence, or raise evidentiary objections in guardianship and protective placement hearings," 222 Wis. 2d at 21, would seem to undermine the ability of a non-petitioner to claim to be aggrieved by an order appointing a guardian. See Richard D. v. Rebecca G., 228 Wis. 2d 658, 661-62, 599 N.W.2d 90 (Ct. App.), review denied, 230 Wis. 2d 276, 604 N.W.2d 573 (Wis. Oct. 26, 1999) (No. 99-0433) (concluding that "the right of foster parents to participate and present evidence in hearings" was the key factor in their being "aggrieved" and entitled to appeal an order under chapter 48). In any event, as I discuss in the text, the order which Carla attempts to appeal is not the initial order appointing a guardian for her father, but an order authorizing the guardian to terminate his rights and obligations under a lease.

       As I have noted, Carla is an "interested person" under WlS. Stat. § 880.01(6), in that she is the daughter of a person "protected under" chapter 880. She is not, however, a "person in any way interested in the real estate," see Wis. Stat. § 786.01, because she, unlike Carl's other children and one of his grandchildren, possessed no legal or equitable interest in the real estate that was subject to the lease in question.

       In addition to objecting to the guardian's request to terminate the life lease, Carla also filed a petition for a "re-hearing" on whether Carl should continue to be subject to a guardianship and protective placement, for the appointment of adversary counsel for Carl, and for the removal of his present guardian. The appealed order addresses none of these matters, and the record does not disclose what action, if any, has been taken on Carla's petitions. My conclusion that Carla lacks standing is limited to her attempted appeal of the order authorizing the guardian to terminate the ward's lease-hold interest in his former residence. The question of the standing of "interested persons" to appeal other orders that may be entered in proceedings under chapters 880 and 55 is not presented by this appeal.

       Given that there is nothing in the record to support the majority's theory that Carl's life interest in the property could be sold or profitably subleased, it is perhaps understandable that the majority relies heavily on conjecture. (See ¶ 12, "Common sense tells us "Tenants almost always ¶ 13, n.5, "As a general proposition, there would be few people who would agree . . . .") I submit that it would be at least as reasonable, if not more so, to assume that prospective purchasers or subtenants for a leasehold interest that is coterminous with the life of an infirm ninety-year-old would be few and far between.


author: ROGGENSACK, J.

text:
    Community National Bank, Plaintiff-Respondent, v. Medical Benefit Administrators, LLC, Defendant-Appellant, PAS, INC., Intervening Defendant-Respondent.
    Court of Appeals

      No. 99-3026.

      Submitted on briefs December 7, 2000.

    Decided March 1, 2001.

    2001 WI App 98
    (Also reported in 626 N.W.2d 340.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Kristine A. Edwards and Daniel J. Schlichting of Hurley, Burish & Milliken, S. C. of Madison.
    On behalf of the intervening defendant-respondent, the cause was submitted on the brief of Kevin J. Palmersheim oí Haley Palmersheim, S.C. of Madison.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.
   ROGGENSACK, J.

¶ 1. Medical Benefit Administrators, LLC (MBA) appeals an order of the circuit court approving the final accounting of its court-appointed receiver. MBA claims that the circuit court erred because the purchaser of MBA's assets awarded the receiver a $400,000 consulting contract as part of MBA's asset sale. We conclude that the receiver had a fiduciary duty to MBA and its creditors not to deal with receivership property to benefit itself at their expense and that the consulting contract constituted a corporate opportunity belonging to MBA, which the receiver appropriated to itself. As a result, we conclude that the circuit court erroneously exercised its discretion in approving the receiver's final accounting, and we reverse that determination. We also remand with directions to determine the appropriate compensation the receiver is to pay to the receivership estate as a result of its breach of fiduciary duty.

BACKGROUND

¶ 2. In 1993, a subsidiary of MBA, Jack Jurewicz Enterprises, Inc., purchased a third-party health benefit plan administration business from PAS, Inc. PAS retained a security interest in the stock of Jack Jurewicz Enterprises and MBA for the purchase price of the business. Jurewicz, who was the president and principal owner of MBA, also personally guaranteed MBA's obligation to PAS. PAS remained in existence as a shell corporation to distribute MBA's payments to its shareholders.

¶ 3. In November 1998, Community National Bank ("the bank"), a secured creditor, initiated a collection action against MBA and moved for the appointment of a receiver on grounds that MBA was insolvent. Jurewicz sold part of the third-party administration business in January. He attempted to negotiate the sale of the balance of MBA's business to Alliance Benefit Group Medical Services, LLC on terms that included a $300,000 consulting agreement between Alliance and MBA for his services after the purchase. Meanwhile, the circuit court permitted PAS to intervene in the action as a co-defendant. Before Jurewicz could complete the sale, PAS exercised its pledge rights in MBA stock and asserted control over the stock and the operation of MBA.

¶ 4. At this point, the bank renewed its request that a receiver be appointed for MBA, and the circuit court appointed PAS. PAS then negotiated the sale of MBA's remaining assets to Alliance. Under the asset purchase agreement, Alliance agreed to pay $2.4 million for MBA's business, the same amount it had offered Jurewicz. However, Alliance also agreed to pay $300,000 to PAS over four years in exchange for consulting services and an agreement not to compete. MBA objected to the terms of the sale, arguing that Jurewicz and MBA should be hired as the consultant and that doing otherwise would leave Jurewicz personally liable for the debt owed to PAS, and would leave several creditors of MBA, including MBA's attorneys, its accountants, and Jurewicz himself, unpaid. Nevertheless, the circuit court approved the sale and the consulting agreement and subsequently approved PAS's actions as receiver and its final accounting. MBA appeals.

DISCUSSION

Standard of Review.

¶ 5. The approval of a receiver's actions and final accounting is reviewed as a discretionary decision. Speiser v. Merchants' Exch. Bank, 110 Wis. 506, 518, 86 N.W. 243, 247 (1901). We will uphold a circuit court's discretionary decision if it examined the relevant facts of record, applied the correct legal standard to them, and reached a conclusion that a reasonable judge could reach. State v. Edmunds, 229 Wis. 2d 67, 74, 598 N.W.2d 290, 294 (Ct. App. 1999).

¶ 6. Whether a corporate opportunity exists is a question of fact. Racine v. Weisflog, 165 Wis. 2d 184, 194, 477 N.W.2d 326, 331 (Ct. App. 1991). We will uphold the trial court's findings of fact unless they are clearly erroneous. Wis. Stat. § 805.17(2) (1999-2000); Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575, 577 (Ct. App. 1983). However, when the facts and their reasonable inferences will permit only one determination, we are presented with a question of law, which we review de novo. Vocational, Technical & Adult Educ., Dist. 13 v. DILHR, 76 Wis. 2d 230, 240, 251 N.W.2d 41, 46 (1977).

Breach of Fiduciary Duty.

¶ 7. A circuit court may appoint a receiver when a corporation is insolvent or in imminent danger of insolvency. Wisconsin Stat. § 813.16(4). "A receiver is . . . appointed by a court to take into [its] custody, control, and management the property or funds of another pending judicial action concerning them." 75 C.J.S. Receivers § 1 (1952). A receiver is a fiduciary to all who come within the scope of its receivership. See McGivern v. Amasa Lumber Co., 77 Wis. 2d 241, 253, 252 N.W.2d 371, 376 (1977); Candee v. Egan, 84 Wis. 2d 348, 362, 267 N.W.2d 890, 897 (1978); In re Portex Oil Co., 43 F. Supp. 859, 860 (D. Ore. 1942); Wis. Stat. § 112.01(1)(b).

¶ 8. While no Wisconsin precedent has directly addressed the scope of a receiver's duty of loyalty to an insolvent corporation, other jurisdictions have con-eluded that a receiver has a fiduciary duty to all parties with an interest in the receivership estate, including the insolvent debtor and all its creditors. Phelan v. Middle States Oil Corp., 154 F.2d 978, 991 (2d Cir. 1946); Martin v. Luster, 85 F.2d 833, 843 (7th Cir. 1936); Security Pac. Nat'l. Bank v. Geernaert, 245 Cal. Rptr. 712, 716 (Ct. App. 1988). The United States Supreme Court has opined that a receiver may not place itself in a position where its personal interests may be antagonistic to those of the estate it is administering. Jackson v. Smith, 254 U.S. 586, 588 (1921). It may not deal with receivership property to benefit itself at the expense of the estate, Crites, Inc. v. Prudential Ins. Co. of America, 322 U.S. 408, 414 (1944), and it may not profit from its receivership except through compensation approved by the court. Ravlin v. Chicago, Aurora & DeKalb R.R. Co., 129 N.E. 730, 736 (Ill. 1921); Adair County v. Ownby, 75 Mo. 282 (1882). If a receiver breaches its fiduciary duty by profiting from the receivership at the expense of the receivership estate, the court must compel it to disgorge its profits and apply them to the receivership estate. Crites, 322 U.S. at 414. Those views are consistent with the duty of loyalty imposed on other fiduciaries under Wisconsin law, and we adopt them.

¶ 9. MBA claims that PAS's taking the $400,000 consulting contract for itself rather than arranging for it to be performed by Jurewicz for the benefit of MBA and its creditors contravened the corporate opportunity doctrine and therefore violated PAS's fiduciary duty as MBA's receiver. The doctrine of corporate opportunity provides that one who is in a fiduciary relationship to a corporation "may not acquire, in opposition to the corporation, property in which the corporation has an interest or tangible expectancy or which is essential to its existence." Gauger v. Hintz, 262 Wis. 333, 351, 55 N.W.2d 426, 435-36 (1952) (corporate officers and directors, as fiduciaries of the corporation, held bound by the corporate opportunity doctrine) (citation omitted). For corporate officers, this restriction arises from the fiduciary duty of undivided loyalty to the corporation. Id. Because a receiver also has a duty of undivided loyalty to the insolvent corporation and its creditors, Phelan, 154 F.2d at 991, we conclude that it, too, is bound by the doctrine of corporate opportunity.

¶ 10. To examine MBA's contention, the factfinder first must consider whether a corporate opportunity existed for the principal, here MBA. Racine, 165 Wis. 2d at 193-95, 477 N.W.2d at 331. In this inquiry, the facts and circumstances are examined in light of whether the principal had an interest or expectancy in the business opportunity and the ability to take advantage of it. Id. at 194, 477 N.W.2d at 331. If it did, the factfinder then determines whether any equitable factors existed that show that the receiver acted in conformity with its fiduciary duties when it took the opportunity for itself. Id. at 195-96, 477 N.W.2d at 331-32.

¶ 11. MBA argues that the circuit court erroneously exercised its discretion in approving PAS's accounting because it failed to consider (1) whether PAS, as the receiver, was under a fiduciary duty to MBA and its creditors; and (2) whether the consulting contract was a corporate opportunity belonging to MBA. We agree. As the court-appointed receiver in a collection action against an insolvent corporation, PAS owed a fiduciary duty to MBA and to its unpaid creditors. As a result of this duty, PAS could not place itself in a position antagonistic to MBA or its unpaid creditors, and it could not deal with receivership property to benefit itself at the expense of those to whom it owed a fiduciary duty.

¶ 12. Accordingly, we conclude that the circuit court erred in failing to consider whether the consulting contract constituted receivership property because it was a corporate opportunity that belonged to MBA. Generally, these determinations are factual determinations to be made by the circuit court. Racine, 165 Wis. 2d at 194, 477 N.W.2d at 331. However, here the uncontroverted facts of record show MBA had both the opportunity to acquire the contract and the ability to perform it. Through affidavits uncontested by PAS, MBA demonstrated that: (1) it had identified the opportunity of the consulting contract and was negotiating to obtain it before the receiver was appointed; (2) MBA had the fundamental knowledge, experience, and personnel necessary to perform the consulting contract because it would have been advising on the operation of a business it had operated since 1993; (3) Jurewicz, who would have provided the consulting services, had operated the third-party claims business as MBA's president since 1993; (4) securing the consulting contract was essential to MBA's plan to pay off its secured creditors; and (5) MBA, despite its insolvency, could have performed the contract through Jurewicz, its employee. Given these undisputed facts, we conclude, as a matter of law, that the consulting contract was a corporate opportunity belonging to MBA.

¶ 13. Next, we consider whether any equitable factors existed to show that PAS acted in conformance with its fiduciary duties towards MBA and its unpaid creditors despite the existence of a corporate opportunity belonging to MBA. Through the enforcement of its rights as a secured creditor of MBA, PAS exercised control of MBA. PAS knew when it was appointed receiver that Jurewicz had been negotiating the sale of MBA to Alliance and that a consulting agreement between MBA and Alliance was a part of that negotiation. PAS told the court that it was negotiating with a different prospective purchaser. However, shortly after being appointed receiver, it sold MBA's business to Alliance at the identical purchase price MBA had negotiated; however, the asset purchase agreement named PAS as the consultant instead of MBA. As a result, the unpaid creditors of MBA had no access to the proceeds of the $400,000 consulting contract, and Jurewicz remained liable to PAS for money owed by MBA because he had personally guaranteed the loan. PAS has identified no equitable factors in its conduct to show that it acted in conformance with its fiduciary duties toward MBA and its unpaid creditors. Therefore we conclude that PAS wrongfully took a corporate opportunity belonging to MBA, to which it owed a fiduciary duty. By so doing, it placed itself in a position antagonistic to MBA and its creditors and breached its fiduciary duty to them.

¶ 14. We turn now to the remedy for PAS's breach of fiduciary duty. Because the circuit court erroneously exercised its discretion in approving PAS's final accounting, which included the $400,000 consulting contract, we reverse that approval and the resulting discharge of PAS. The record does not reflect what Alliance has paid PAS on the consulting contract or what PAS's profit was or what would have been MBA's profit had it been permitted to perform the contract. When a receiver breaches its fiduciary duty to those to whom it owes such a duty, it must disgorge the profits resulting from the breach of duty. Crites, 322 U.S. at 414. One method of accomplishing this is for the circuit court to order the receiver to turn over all profits received as a result of the breach and apply them to the receivership estate. That is a remedy that could be employed here; however, we do not preclude other methods that the circuit court may conclude are appropriate. Therefore, we remand this matter to the circuit court to determine PAS's profit derived from its breach of fiduciary duty as MBA's receiver, MBA's expected profit from the consulting agreement and the appropriate payment for PAS to make, either directly or indirectly, to the receivership estate.

CONCLUSION

¶ 15. We conclude that PAS, as the receiver for MBA, had a fiduciary duty to MBA and its creditors not to deal with receivership property to benefit itself at the expense of MBA. We also conclude that the consulting contract was a corporate opportunity belonging to MBA that the circuit court did not acknowledge. Accordingly, we conclude the circuit court erroneously exercised its discretion in approving the receiver's final accounting, and we reverse that determination. We also remand with directions to determine the appropriate compensation PAS is to pay to the receivership estate because of its breach of fiduciary duty.

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

       The complaint alleged MBA was insolvent. No answer was filed to contest that allegation.

       The terms of the agreement were subsequently revised to a $400,000 payment over five years.

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

       “Wisconsin Stat. § 813.16. Receivers. A receiver may be appointed:
      (4) When a corporation has been dissolved or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights.

       PAS argues that the $400,000 consulting contract could be viewed as compensation for its services as a receiver. However, generally a receiver may not be compensated for its services when it also is a party to the underlying action. Bartelt v. Smith, 145 Wis. 31, 36, 129 N.W. 782, 784 (1911). Additionally, the $400,000 was to be paid for consulting services that were to be provided over the next five years, not for services it had already provided as a receiver.

       A principal is one to whom a fiduciary owes a fiduciary obligation. Wisconsin Stat. § 112.01(l)(e).

       Under Wisconsin law, a creditor may not be appointed as a receiver of an insolvent corporation unless both parties consent or unless other special circumstances are present. Bartelt, 145 Wis. at 36, 129 N.W. at 784. Because MBA did not object when the circuit court appointed PAS as the receiver, we do not consider the issue on appeal.

       In its brief, PAS states it "did not have a fiduciary duty directly to MBA, but only indirectly as an appointee of the court." We are unsure of the distinction PAS is trying to establish, and it cites no authority for its statement.

       The record on appeal does not contain a copy of the consulting contract between PAS and Alliance.

       We do not disturb the sale to Alliance, which is not a party to this action.

       For example, our directions on remand do not preclude PAS from assigning the consulting contract to MBA or from subcontracting the provision of services under that contract to MBA, if the contract so allows or can be amended with the agreement of Alliance to so allow.


text:
    In re the Commitment of Aaron K. Gibbs: State of Wisconsin, Petitioner-Respondent, v. Aaron K. Gibbs, Respondent-Appellant.

    Court of Appeals

      No. 00-1176.

      Submitted on briefs January 12, 2001.

    Decided March 7, 2001.

    2001 WI App 83
    (Also reported in 625 N.W.2d 666.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs oí Donna L. Hintze, assistant state public defender of Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Diane M. Welsh, assistant attorney general, and James E. Doyle, attorney general.

      Before Nettesheim, Anderson and Snyder, JJ.

      Petition to review denied.

   ANDERSON, J.

¶ 1. Aaron K. Gibbs appeals from a circuit court judgment and order committing him for institutional care under WlS. STAT. ch. 980 (1997-98). Gibbs argues that ch. 980 does not authorize the filing of a petition against an individual adjudicated delinquent under former WlS. STAT. ch. 48 (1993-94). Based on this contention, Gibbs claims that the judgment and commitment order must be vacated and the petition dismissed. We disagree. We hold that the circuit court had the authority to proceed on the sexual predator petition because ch. 980 was not meant to exclude from coverage those individuals, like Gibbs, found delinquent for violent sexual offenses under former WlS. Stat. ch. 48 (1993-94). We affirm.

Facts

¶ 2. On June 3, 1999, the State filed a petition asking that Gibbs be detained pursuant to Wis. Stat. § 980.02(1)(a) as a "sexually violent person" within the meaning of WlS. Stat. § 980.01(7). The petition stated that Gibbs had been adjudicated "delinquent" as defined in former WlS. Stat. § 48.02 (1993-94) on June 20, 1995, for a sexually violent offense, specifically, first-degree sexual assault of a child contrary to WlS. Stat. § 948.02(1) (1993-94).

¶ 3. On June 3, 1999, the date the WlS. STAT. ch. 980 petition was filed, the circuit court made a preliminary finding of probable cause that Gibbs was a sexually violent person and entered a detention order. On June 18, 1999, the court found probable cause and ordered the case scheduled for trial. A court trial was held on December 10, 1999. At the close of trial, the court issued a written decision finding Gibbs to be a sexually violent person. On February 1, 2000, a judgment and order were entered committing Gibbs for institutional care. On April 27, 2000, Gibbs filed a notice of appeal.

Standard of Review

¶ 4. The applicability of WlS. STAT. ch. 980 to individuals who have been adjudicated under the former WlS. Stat. ch. 48 (1993-94) requires statutory interpretation and our standard of review is de novo. State v. Irish, 210 Wis. 2d 107, 110, 565 N.W.2d 161 (Ct. App. 1997). The threshold question we must ask is whether the relevant statutes are ambiguous. Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 740, 349 N.W.2d 661 (1984). A statute is ambiguous if it could support more than one reasonable interpretation. State v. Sweat, 208 Wis. 2d 409, 417-18, 561 N.W.2d 695 (1997); UFE Inc. v. LIRC, 201 Wis. 2d 274, 282-83, 548 N.W.2d 57 (1996). The words of a particular statutory provision or the words of a provision as they relate to other provisions or statutes may create ambiguity. Id.

Statutory Changes and Analysis

¶ 5. Gibbs argues that Wis. Stat. § 980.02(2)(ag) is clear on its face. We reject Gibbs’s contention. We hold that § 980.02(2)(ag) is ambiguous in its scope. The problem arises because of statutory changes subsequent to Gibbs's original juvenile adjudication. WlS CONSIN Stat. ch. 980 was in existence when Gibbs was found delinquent. The provision in question, § 980.02(2)(ag), referred to the old juvenile code WlS. Stat. ch. 48 (1993-94) and provided in pertinent part:

(2) A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:
(a) The person satisfies any of the following criteria:
2. The person has been found delinquent for a sexually violent offense.
(ag) The person is within 90 days of discharge or release, on parole or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense, from a secured correctional facility, as defined in s. 48.02(15m), if the person was placed in the facility for being adjudicated delinquent under s. 48.34 on the basis of a sexually violent offense or from a commitment order that was entered as a result of a sexually violent offense.

Section 980.02(2)(ag) (1993-94) (emphasis added).

¶ 6. In 1995, after Gibbs was adjudicated delinquent, WlS. Stat. ch. 48 (1993-94) was "broken up" by legislation. All of the provisions dealing with delinquency were recreated in the new Wis. Stat. ch. 938. As part of the legislation, Wis. Stat. § 980.02(2)(ag) (1993-94) was modified by substituting references to sections of Wis. Stat. ch. 48 (1993-94) with references to sections of the new ch. 938. The last amendments to § 980.02(2)(ag) were made in 1997 and the statute now reads in relevant part:

(2) A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:
(a) The person satisfies any of the following criteria:
2. The person has been found delinquent for a sexually violent offense.
(ag) The person is within 90 days of discharge or release, on parole, extended supervision or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense, from a secured correctional facility, as defined in s. 938.02(15m), or a secured child caring institution, as defined in s. 938.02(15g), if the person was placed in the facility for being adjudicated delinquent under s. 938.183 or 938.34 on the basis of a sexually violent offense or from a commitment order that was entered as a result of a sexually violent offense. (Emphasis added.)

¶ 7. The question is whether in 1997 the circuit court had the authority under the 1997-98 version of Wis. Stat. ch. 980 to proceed on a sexual predator petition against an individual who was adjudicated under the old juvenile code. The 1997-98 version of ch. 980 refers to the recreated and newly numbered juvenile code (WlS. Stat. ch. 938) and makes no reference to the 1993-94 juvenile code (WlS. STAT. ch. 48). In substance, however, the references in both versions of ch. 980 are the same. Both the 1993-94 version and the 1997-98 version of ch. 980 refer to an individual adjudicated delinquent on the basis of a sexually violent offense or from a commitment order that was entered as a result of a sexually violent offense. The substance of ch. 980 authority is unchanged despite the renumbering of the juvenile code. This independently demonstrates circuit court authority under ch. 980 to proceed on a sexual predator petition.

¶ 8. Even further support for this authority comes from WlS. Stat. § 980.13, the applicability section of Wis. Stat. ch. 980. Section 980.13 tells us that ch. 980 applies retroactively. It states that the applicability of ch. 980 extends to "a sexually violent person regardless of whether the person engaged in acts of sexual violence before, on or after June 2,1994." Nonetheless, when Wis. Stat. § 980.02(2)(ag) is read in conjunction with § 980.13, there is an ambiguity. The ambiguity stems from the fact that if the 1997-98 version of § 980.02(2)(ag) is read literally, ch. 980 would not cover sexual offenders adjudicated under former Wis. Stat. ch. 48 (1993-94) because it refers only to the new Wis. Stat. ch. 938. We must dispel the ambiguity.

¶ 9. It would be absurd to conclude, in light of the retroactive applicability of Wis. STAT. ch. 980, that the legislature would intentionally exclude from coverage all those adjudicated of violent sexual offenses under former Wis. Stat. ch. 48. Courts must apply statutes as they are written, unless to do so would lead to an absurd result. State v. Young, 180 Wis. 2d 700, 704, 511 N.W.2d 309 (Ct. App. 1993), aff'd, 191 Wis. 2d 393, 528 N.W.2d 417 (1995); see also DNR v. Wis. Power & Light Co., 108 Wis. 2d 403, 408, 321 N.W.2d 286 (1982). Therefore, to avoid an absurd result, we conclude that the legislature intended ch. 980 to apply to those adjudicated under former Wis. Stat. ch. 48.

¶ 10. This court confronted a similar issue in Irish. In that case, the defendant appealed his commitment as a sexually violent person under Wis. Stat. ch. 980. Irish, 210 Wis. 2d at 108. The issue was whether the definition of "sexually violent offense" in Wis. Stat. § 980.01(6) referred not to a conviction under Wis. Stat. § 948.07, but to "any crime specified" in that section. Irish, 210 Wis. 2d at 110-11. We held that "while the definition of ’[s]exually violent offense’ is ambiguous, we believe the history, purpose and scope of ch. 980, Stats., reveals that the legislature intended to include child enticement convictions under the former statute within that definition.". Irish, 210 Wis. 2d at 114. The legislative act of repealing and recreating the former statute did not exempt the defendant from ch. 980.

¶ 11. Just as in Irish, here there is confusion due to the recreation of a statute. The revision of WlS. STAT. ch. 980, specifically Wis. Stat. § 980.02(2)(ag), replaced the reference to an adjudication of delinquency under Wis. Stat. § 48.34 (1993-94) with a reference to Wis. Stat. § 938.34. See 1995 Wis. Act 77, § 695. Gibbs would like us to believe that the legislature intended to exclude those who were adjudicated delinquent under Wis. Stat. § 48.34 (1993-94) from potential commitment under ch. 980. We believe no such thing. Instead, we believe that the lack of reference to Wis. Stat. ch. 48 (1993-94) was an inadvertent oversight. A renumbered statute without a change in substance does not exempt a defendant from ch. 980. The reference in § 980.02(2)(ag) to § 938.34 incorporates the former Wis. Stat. § 48.34 (1993-94), the predecessor to § 938.34.

¶ 12. We could end our discussion here but consider instructive the analysis in People v. Andrade, 190 Cal. Rptr. 738 (Cal. App. Dep't. Super. Ct. 1983). In Andrade, the defendant was accused of violating the California Vehicle Code (driving under the influence of an alcoholic beverage) on January 9,1982, with a prior conviction in 1980 for a violation of the former California Vehicle Code. Andrade, 190 Cal. Rptr. at 739.

¶ 13. In 1981, the California Legislature revised its laws relating to drunk driving. Id. Before these revisions, the offense of drunk driving was proscribed in California Vehicle Code § 23102. After the revisions, the offense of drunk driving was proscribed in California Vehicle Code § 23152. Thus, the 1981 revision slightly modified the wording of the drunk driving section and caused it to be renumbered from California Vehicle Code §23102 to California Vehicle Code § 23152.Andrade, 190 Cal. Rptr. at 739.

¶ 14. The 1981 revision also created an additional section of the drunk driving code. This new "increased penalty" section applied if a person was convicted of drunk driving within five years of a prior conviction for drunk driving. Id. at 740. Notably, no mention was made of prior convictions under the former California Vehicle Code § 23102, which was the predecessor to California Vehicle Code § 23152 and the section under which the defendant in Andrade had been previously convicted.

¶ 15. Andrade argued that since the express language of the new "increased penalty" section referred only to California Vehicle Code § 23152, and since his prior conviction was for a violation of former California Vehicle Code § 23102, he could not suffer the increased penalty. Andrade, 190 Cal. Rptr. at 740. The Andrade court disagreed and held that

[w]hen used in a statute, the number of a particular section is simply a shorthand means of describing or designating the substance of the provisions of the law to which they refer. The substance of any legislative enactment is not in the numerals assigned to designate it, but in the language of the law itself.

Id. (emphasis added). The court went on to hold that the defendant, having been convicted for a second offense of drunk driving, must suffer the increased penalty described.

¶ 16. Our interpretation that the incorporation of the delinquency adjudication statute in WlS. STAT. § 980.02(2)(ag) is an incorporation of the substance of the adjudication process, rather than merely a numerical designation, avoids an absurd result. Andrade represents a persuasive and reasonable approach to the interpretation of a statutory reference in one statute to another statute. We agree with Andrade that "the number of a particular section is simply a shorthand means of describing or designating the substance of [that section]." Andrade, 190 Cal. Rptr. at 740. With this decision, we abide by the spirit and the purpose of WlS. STAT. ch. 980. As noted earlier, the applicability section, WlS. STAT. § 980.13, demonstrates that the legislature intended ch. 980 to be applied to sexually violent persons who had been adjudicated delinquent for offenses prior to or after June 2, 1994. Therefore, it is no stretch to hold that ch. 980 applies to persons adjudicated delinquent under both the former WlS. STAT. § 48.34 (1993-94) as well as the present WlS. STAT. § 938.34.

By the Court.-Judgment and order affirmed.

       In our determination, we will rely on the 1997 — 98 version of the Wisconsin Statutes, the relevant statutes at the time of the circuit court decision. All further references to the Wisconsin Statutes will be to the 1997-98 version unless otherwise noted.

       WISCONSIN Stat. § 980.01(7) defines a "sexually violent person" as
      a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence. (Emphasis added.)

       Former Wis. Stat. §48.02(3m) (1993-94) defines "delinquent" as "a child who is less than 18 years of age and 12 years of age or older who has violated any state or federal criminal law."
      The definition for delinquent is now found in the recreated Juvenile Justice Code, WlS. STAT. ch. 938. WISCONSIN Stat. § 938.02(3m) defines "delinquent" as "a juvenile who is 10 years of age or older who has violated any state or federal criminal law."

       Wisconsin Stat. § 948.02(1) (1993-94) and § 948.02(1) (1997-98) are identical. They read: "FIRST DEGREE SEXUAL ASSAULT. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony."

       We note that the State, in its appellate response, initially argued waiver, contending that Gibbs had waived this issue because he did not raise it in the circuit court. Waiver is a rule of judicial administration and does not deprive this court of the power to address the waived issue, Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980), especially where there are no factual issues which require resolution. State v. Skamfer, 176 Wis. 2d 304, 311, 500 N.W.2d 369 (Ct. App. 1993). We will address the issue on its merits because it is likely to recur.