Justia.com Opinion Summary: An accountant and the company he owned (collectively, MBS), filed suit against Defendants, telecommunications companies, asserting claims for damages under Wis. Stat. 100.207 and other statutes, arguing that Defendants' telephone bills contained unauthorized charges. The circuit court dismissed MBS's claims for relief, determining that although the complaint properly alleged violations of section 100.207, the voluntary payment doctrine barred any entitlement to monetary relief. The court of appeals affirmed. The Supreme Court reversed and remanded, holding (1) the Supreme Court had not decided whether the legislature intended the voluntary payment doctrine to be a viable defense against any cause of action created by a statute; and (2) under the circumstances, the conflict between the manifest purpose of section 100.207 and the common law defense left no doubt that the legislature intended that the common law defense should not be applied to bar claims under the statute. Remanded.
Receive FREE Daily Opinion Summaries by Email Download as PDF
Loading PDF...
<![CDATA[
2012 WI 15
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2008AP1830
MBS-Certified Public Accountants, LLC and Thomas
H. Schmitt, CPA, d/b/a Metropolitan Business
Services,
Plaintiffs-Appellants-Cross
Respondents-Petitioners,
v.
Wisconsin Bell Inc., d/b/a AT & T Wisconsin,
Defendant-Respondent,
ILD Telecommunications, Inc., d/b/a ILD
Teleservices, Local Biz USA, Inc. and Americatel
Corporation,
Defendants-Respondents-CrossAppellants,
US Connect, LLC,
Defendant.
REVIEW OF THE DECISION OF THE COURT OF APPEALS
Reported at 329 Wis. 2d 709, 790 N.W.2d 542
(Ct. App. 2010-Unpublished)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
February 24, 2012
September 16, 2011
CIRCUIT
MILWAUKEE
RICHARD J. SANKOVITZ
PROSSER, J., concurs in part and dissents in
part (Opinion filed).
GABLEMAN, J., joins concurrence/dissent.
ABRAHAMSON, C. J., did not participate.
ATTORNEYS:
For the plaintiffs-appellants-cross-respondentspetitioners, there briefs filed by Douglas P. Dehler and O’Neil
Cannon, Hollman, DeJong & Laing, S.C., Milwaukee, James E.
Miller, pro hac vice, James C. Shah, pro hac vice, and Shepherd,
Finkelman, Miller & Shah, LLC, Media, PA, and oral argument by
Douglas P. Dehler.
For
the
defendant-respondent
there
were
briefs
filed
by
Paul F. Linn, Ted A. Wisnefski, and Michael, Best & Friedrich,
LLP, Milwaukee, and oral argument by Paul F. Linn.
For
the
defendant-respondent-cross-appellant
there
were
briefs filed by Robert H. Friebert, Christopher M. Meuler and
Friebert, Finerty & St. John, S.C. of Milwaukee, and Gregory F.
Harley, pro hac vice, and Burr & Forman, LLP, and oral argument
by Gregory F. Harley.
An
amicus
curiae
brief
was
filed
by
John
S.
Greene,
assistant attorney general, with whom on the brief was J. B. Van
Hollen, attorney general, on behalf of the State of Wisconsin.
2
2012 WI 15
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2008AP1830
(L.C. No.
2006CV8092)
STATE OF WISCONSIN
:
IN SUPREME COURT
MBS-Certified Public Accountants, LLC and
Thomas H. Schmitt, CPA, d/b/a Metropolitan
Business Services,
Plaintiffs-Appellants-CrossRespondents-Petitioners,
v.
FILED
Wisconsin Bell Inc., d/b/a AT & T Wisconsin,
Defendant-Respondent,
ILD Telecommunications, Inc., d/b/a ILD
Teleservices, Local Biz USA, Inc. and
Americatel Corporation,
FEB 24, 2012
A. John Voelker
Acting Clerk of Supreme
Court
Defendants-Respondents-CrossAppellants,
US Connect, LLC,
Defendant.
REVIEW of a decision of the Court of Appeals.
cause remanded to the court of appeals.
Reversed and
No.
¶1
ANN
WALSH
BRADLEY,
J.
The
petitioners,
2008AP1830
Thomas
H.
Schmitt and MBS-Certified Public Accountants, LLC (collectively,
MBS), seek review of an unpublished decision of the court of
appeals affirming a circuit court order dismissing their claims
for monetary relief.1
common
law
voluntary
The circuit court determined that the
payment
doctrine
barred
MBS's
claims
against Wisconsin Bell, Inc. and ILD Telecommunications, Inc.
for damages under Wis. Stat. § 100.207 and other statutes.2
¶2
The defendant telecommunications companies assert that
Putnam v. Time Warner Cable of Southeastern Wisconsin, 2002 WI
108, 255 Wis. 2d 447, 649 N.W.2d 626, is squarely on point and
forecloses the argument advanced by MBS.
contend
that
under
the
rule
of
Additionally, they
Fuchsgruber
v.
Custom
Accessories, Inc., 2001 WI 81, 244 Wis. 2d 758, 628 N.W.2d 833,
the legislature was required to make explicit reference to the
voluntary payment doctrine in the text of Wis. Stat. § 100.207
if it intended the doctrine to be inapplicable to claims under
that statute.
¶3
We
conclude
that
no
Wisconsin
court
has
addressed
whether the legislature intended the voluntary payment doctrine
to be a viable defense against any cause of action created by a
statute.
In
Putnam,
the
question
of
whether
the
voluntary
1
See MBS-Certified Public Accountants, LLC & Schmitt v.
Wisconsin Bell, No. 2008AP1830, unpublished slip. op. (Wis. Ct.
App., Aug. 10, 2010), affirming orders of the circuit court for
Milwaukee County, Richard J. Sankovitz, Judge, presiding.
2
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
No.
2008AP1830
payment doctrine was a viable defense to a claim under Wis.
Stat. § 100.18(1) may have lurked in the record, but it was
neither
brought
to
the
specifically addressed.
attention
of
the
court
nor
was
it
Accordingly, it was not decided by this
court.
¶4
We further determine that the defendants misinterpret
Fuchsgruber.
Application of the common law voluntary payment
doctrine would undermine the manifest purposes of Wis. Stat.
§ 100.207.
Under these circumstances, the conflict between the
statute's manifest purpose and the common law defense leaves no
doubt that the legislature intended that the common law defense
should not be applied to bar claims under the statute.
¶5
Accordingly, we reverse and remand to the court of
appeals to address ILD's cross-appeal and, if appropriate, any
previously
unresolved
appellate
issues
regarding
Wis.
Stat.
§ 100.18(1) and the Wisconsin Organized Crime Control Act.
I
¶6
illegal
The allegations at issue in this case relate to an
telecommunications
According to
which
MBS,
cramming
telecommunications
practice
is a
called
deceptive
companies
insert
"cramming."
billing
scheme in
relatively
small,
unauthorized charges into customers' telephone bills with the
expectation
that
the
customers
will
unwittingly
pay
the
unauthorized charges.
¶7
The facts set forth below are taken primarily from
MBS's complaint.
Because we are reviewing the circuit court's
3
No.
2008AP1830
grant of a motion to dismiss for failure to state a claim, we
must assume that these facts are true.
¶8
Thomas Schmitt is an accountant who owns and operates
MBS-Certified Public Accountants, LLC (MBS).
the
local
service.3
exchange
At
carrier
some
point,
that
Schmitt
Wisconsin Bell is
provides
MBS's
discovered
telephone
that
Wisconsin
Bell's telephone bills contained unauthorized charges.
Schmitt
and MBS filed suit.4
¶9
According
to
the
allegations
in
the
complaint,
the
unauthorized charges, which ranged from $2 to $40 per month,
were generated by three service providers, Local Biz USA, U.S.
Connect, and AmericaTel.
business
of
providing
These service providers are in the
internet
and
web
hosting
services,
directory assistance services, and international calling plans,
respectively.
MBS asserted: "Because consumers would be more
likely to question unauthorized charges if they were contained
in
bills
sent
to
them
directly
by
the
Service
Provider
Defendants . . . , those Service Provider Defendants enlist the
3
Although MBS's
agree that Wisconsin
name of the intended
dismissal of AT&T and
complaint named AT&T, Inc., the parties
Bell d/b/a AT&T Wisconsin is the correct
defendant.
The parties stipulated to the
the substitution of Wisconsin Bell.
4
Schmitt and MBS filed suit "on behalf of themselves and
all others similarly situated."
The complaint was dismissed
before the circuit court had the occasion to determine whether
it was appropriate to certify the lawsuit as a class action.
Accordingly, at this point the only plaintiffs in this lawsuit
are Schmitt and MBS.
4
No.
2008AP1830
aid of third-party billing companies, . . . which agree to take
part in the deceptive business practices in exchange for a fee."
¶10
According
to
MBS,
the
unauthorized
charges
were
forwarded to ILD Communications (ILD), a billing clearinghouse.
ILD aggregated the unauthorized charges and then forwarded them
on to Wisconsin Bell, where they were incorporated into MBS's
telephone
bills
under
the
heading
"Miscellaneous
Charges
and
Credits."
The complaint alleges that Schmitt did not notice the
unauthorized charges and unwittingly paid them.
¶11
three
The
defendants
categories:
Connect,
named
service
AmericaTel);
exchange
local
and
carriers
in
MBS's
providers
billing
(Wisconsin
complaint
(Local
Biz
clearinghouses
Bell).
At
fall
into
USA,
U.S.
(ILD);
and
this
point,
however, only two defendants, ILD and Wisconsin Bell, remain as
parties to this appeal.5
¶12
In relevant part, the complaint alleged violations of
Wis. Stat. § 100.207(2) and (3)(a), violations of Wis. Stat.
§ 100.18(1),
Control
Act,
and
violations
Wis.
Stat.
Crime Control Act).6
of
the
§ 946.80,
Wisconsin
et
seq.
Organized
Crime
(hereinafter,
the
The telecommunications company defendants
5
U.S. Connect never appeared in the action before the
circuit court and was defaulted.
Further, while this case was
pending at the court of appeals, AmericaTel was dismissed to
accommodate a settlement agreement, and Local Biz filed for
bankruptcy and was later dismissed under Wis. Stat. § (Rule)
809.18.
6
Additionally, the complaint alleged violations of Wis.
Stat. § 100.20(5) and unjust enrichment. MBS did not appeal the
circuit court's dismissal of either of these claims. Therefore,
they are not before this court.
5
No.
2008AP1830
filed motions to dismiss, alleging various defenses including
the voluntary payment doctrine.
Under that doctrine, a party
cannot bring an action "to recover payments that [were] paid
voluntarily,
with
full
knowledge
of
the
material
absent fraud or wrongful conduct inducing payment."
facts,
and
Putnam, 255
Wis. 2d 447, ¶13.
¶13
At a hearing on the defendants' motions, the circuit
court dismissed all claims for monetary relief against ILD and
Wisconsin Bell with one exception.7
The circuit court's analysis
focused primarily on the language of 100.207(2) and (3)(a).
determined
that
violations
of
although
Wis.
Stat.
the
complaint
§ 100.207,
the
It
properly
alleged
voluntary
payment
doctrine would bar any entitlement to monetary relief.
¶14
court
Taking the allegations in the complaint as true, the
concluded
that
each
of
the
defendants
made
false
statements with regard to the provision of telecommunications
service in violation of § 100.207(2).8
It explained: "Stating on
7
The circuit court refrained from dismissing claims for
money damages arising out of one charge generated by U.S.
Connect. See infra, ¶19 n.10. Additionally, the court's order
left intact MBS's claims for injunctive relief. Ultimately, the
parties stipulated to dismiss the claims for injunctive relief
with prejudice.
8
Wisconsin Stat. § 100.207(2) provides:
A person may not make in any manner any statement or
representation
with regard
to
the
provision of
telecommunications services,
including the
rates,
terms or conditions for telecommunications service,
which is false, misleading or deceptive, or which
omits to state material information with respect to
the provision of telecommunications service that is
6
No.
a
phone
bill
that
a
customer
owes
money
for
2008AP1830
services
the
customer did not authorize is false. . . . And that seems to be
the only element that must be shown to demonstrate a violation
of Wis. Stat. § 100.207(2)."
¶15
The court also concluded that all of the defendants
except ILD violated § 100.207(3)(a).9
The court excepted ILD
because it was "satisfied that ILD did not bill the plaintiffs.
ILD collected, packaged, and communicated billing information to
Wisconsin Bell, but that conduct cannot fairly be described as
'billing'[.]"
¶16
Nevertheless, the court went on to conclude that "the
complaint
also
claim."
Relying
notice
the
establishes
charges
on
MBS's
and
a
possible
allegation
unwittingly
defense
that
paid
to
the
damage
Schmitt "did
them,"
it
not
asserted:
"[T]he complaint implies that the plaintiffs voluntarily paid
the unlawful charges."
necessary to make the statements not false, misleading
or deceptive.
9
Wisconsin Stat. § 100.207(3)(a) provides:
A person may not engage in negative option billing or
negative enrollment of telecommunications services,
including unbundled telecommunications services.
A
person
may
not
bill
a
customer
for
any
telecommunications service that the customer did not
affirmatively order unless that service is required to
be provided
by
law,
the
federal
communications
commission or the public service commission.
A
customer's failure to refuse a person's proposal to
provide
a
telecommunications
service
is
not
an
affirmative
request
for
that
telecommunications
service.
7
No.
¶17
The
court
concluded
that
the
voluntary
2008AP1830
payment
doctrine was a viable defense to MBS's claims for damages under
Wis. Stat. § 100.207 because the legislature did not insert any
language in the statute that expressly abrogated the common law
doctrine:
I reach this juncture in my reasoning by following the
maxim that a court cannot read a statute to override
the common law unless the legislative purpose to do so
is clearly expressed in the language of the statute.
A good example
of
this
principle
Fuchsgruber
v.
Custom
Accessories,
Wis. 2d 758] . . . .
at
work
is
Inc.,
[244
Likewise, in the case before me, I find a lack of any
explicit reference to voluntary payment in section
100.207, and that lack of any explicit reference to
the possibility of voluntary payment leads me to
conclude that the Legislature did not intend for this
statute to override this common law doctrine.
I simply do not find any words suggesting that you can
claim
damages
under
the
statute
even
if
you
voluntarily paid.
The
court
Legislature
asserted
knew
that
about
the
it
was
required
doctrine
and
to
knew
"presume
this
would
the
be
raised as a defense, [and] if they didn't want it raised as a
defense, they would have said so."
¶18
Additionally,
the
circuit
court
found
support
in
Putnam: "I'm also influenced by the fact that the Putnam court
upheld
the
application
of
the
common
law
voluntary
payment
doctrine against not only common law damage claims, but also a
statutory claim."
8
No.
¶19
2008AP1830
Wisconsin case law recognizes three exceptions to the
voluntary payment doctrine: fraud, duress, and mistake of fact.
See Putnam, 255 Wis. 2d 447, ¶13.
Turning to those exceptions,
the circuit court determined that MBS had alleged fraud but had
failed to "satisfy the court" that the charges were sufficiently
deceptive to fulfill the elements of common law fraud: "[T]he
charges
were
stated
with
sufficient
particularity
that
a
reasonable customer would be startled to find such a charge on
the bill."10
¶20
As explained above, the circuit court's analysis was
focused on the language of Wis. Stat. § 100.207.
It did not
specifically examine Wis. Stat. § 100.18(1) or the Crime Control
Act
to
determine
whether
the
voluntary
payment
applicable to claims under those statutes.
doctrine
was
Nevertheless, by
dismissing all of MBS's claims for monetary relief, it appears
that
the
court
implicitly
concluded
that
the
doctrine
was
a
viable defense to claims under Wis. Stat. § 100.18(1) and the
Crime Control Act as well.
¶21
rationale
Additionally,
for
§ 100.18(1).
representations
the
dismissing
It
the
concluded
that
are
court
provided
claims
that
made
10
in
that
an
under
statute
advertisements
alternative
Wis.
Stat.
applied
and
to
sales
The court made one exception for the charge for "MONTHLY
SVCS" generated by U.S. Connect.
It explained: "[t]he words,
'monthly service fee' are generic and ambiguous enough that even
a dedicated bean counter might look at that and say, okay I can
see why I have to pay a monthly fee, and would be easily
hoodwinked."
9
No.
promotions,
and
that
the
telephone
bills
did
not
2008AP1830
constitute
advertisements or sales promotions.11
At a hearing on MBS's
motion
stood
for
reconsideration,
the
court
by
its
previous
decision to dismiss the claims.12
11
Wisconsin Stat. § 100.18(1) provides:
No person, firm, corporation or association, or agent
or employee thereof, with intent to sell, distribute,
increase the consumption of or in any wise dispose of
any real estate, merchandise, securities, employment,
service, or anything offered by such person, firm,
corporation or association, or agent or employee
thereof, directly or indirectly, to the public for
sale, hire, use or other distribution, or with intent
to induce the public in any manner to enter into any
contract or obligation relating to the purchase, sale,
hire, use or lease of any real estate, merchandise,
securities,
employment
or
service,
shall
make,
publish, disseminate, circulate, or place before the
public, or cause, directly or indirectly, to be made,
published, disseminated, circulated, or placed before
the public, in this state, in a newspaper, magazine or
other publication, or in the form of a book, notice,
handbill, poster, bill, circular, pamphlet, letter,
sign, placard, card, label, or over any radio or
television station, or in any other way similar or
dissimilar
to
the
foregoing,
an
advertisement,
announcement, statement or representation of any kind
to the public relating to such purchase, sale, hire,
use or lease of such real estate, merchandise,
securities, service or employment or to the terms or
conditions thereof, which advertisement, announcement,
statement or representation contains any assertion,
representation or statement of fact which is untrue,
deceptive or misleading.
12
The court further elucidated upon its alternative
rationale for dismissing the Wis. Stat. § 100.18(1) claim.
It
explained that the representations in the telephone bills did
not constitute advertisements or sales promotions because they
were not made to the public for the purpose of inducing a future
sale.
10
No.
¶22
under
MBS appealed the dismissal of its claims for relief
Wis.
Stat.
§ 100.207,
Crime Control Act.
of
2008AP1830
appeals
was
doctrine.
In
Wis.
Stat.
§ 100.18(1),
and
the
The primary focus of its brief to the court
the
applicability
addition,
MBS
of
the
appealed
voluntary
payment
circuit
court's
the
alternative rationale for dismissing the § 100.18(1) claims and
the
court's
determination
that
MBS
failed
to
state
a
§ 100.207(3)(a) claim against ILD because ILD did not "bill"
MBS.
¶23
ILD cross-appealed.
voluntary
payment
doctrine,
§ 100.207
claims
against
It argued that in addition to the
the
it
dismissal
should
be
of
the
Wis.
Stat.
on
other
affirmed
grounds.13
¶24
Relying primarily on Fuchsgruber and Putnam, the court
of appeals concluded that the voluntary payment doctrine applied
to bar MBS's claims for monetary relief.
MBS-Certified Public
Accountants, LLC & Schmitt v. Wisconsin Bell, No. 2008AP1830,
unpublished slip. op. (Wis. Ct. App., Aug. 10, 2010).
Because
of this determination, the court of appeals declined to address
13
In its cross-appeal, ILD argued that the Wis. Stat.
§ 100.207(2) claim against it was unavailing because (1) the
statute prohibits false, misleading, or deceptive statements and
representations, and ILD did not make any statement or
representation to MBS; (2) the statute applies to statements
made in the context of advertising or sales promotions, and the
bills were not advertising or sales promotions; and (3) MBS
lacks standing to file suit under Wis. Stat. § 100.207 because
MBS is not a "consumer" as that term has been defined by the
Department of Agriculture, Trade and Consumer Protection.
11
No.
the
additional
arguments
presented
address ILD's cross-appeal.
by
MBS
and
2008AP1830
declined
to
Id., ¶1.
II
¶25
Upon
review,
we
must
determine
whether
the
circuit
court properly granted the defendants' motions to dismiss.
We
review a grant or denial of a motion to dismiss independently of
the determinations rendered by the circuit court and the court
of appeals.
Pool v. City of Sheboygan, 2007 WI 38, ¶9, 300
Wis. 2d 74,
729
N.W.2d 415.
Like
the
circuit
court
and
the
court of appeals, we must assume that the allegations in the
complaint are true.
¶26
Putnam, 255 Wis. 2d 447, ¶11.
This case presents the issue of whether the voluntary
payment doctrine is a viable defense to claims under several
statutes.
Ultimately,
interpretation.
It
this
must
be
is
decided
a
matter
whether
of
the
statutory
legislature
intended the common law defense to be applied to bar monetary
relief
under
question
of
these
law,
statutes.
which
we
Statutory
also
review
interpretation
independently
is
of
a
the
determinations rendered by the circuit court and the court of
appeals.
¶27
the
issue
Pool, 300 Wis. 2d 74, ¶9.
We begin by addressing the defendants' contention that
in
this
case
was
already
decided
Wis. 2d 447, a recent decision of this court.
in
Putnam,
255
Then, we turn to
interpreting the statute and addressing the defendants' argument
that
Fuchsgruber,
244
Wis. 2d 758,
resolves
the
matter
statutory interpretation that is presented by this case.
III
12
of
No.
¶28
2008AP1830
MBS asserts that the voluntary payment doctrine is not
a viable defense to its statutory claims for damages because the
doctrine
conflicts
with
the
purposes
of
the
statutes.
The
defendant telecommunications companies counter that we need look
no further than a recent decision of this court to resolve the
issue.
They contend that Putnam demonstrates that the voluntary
payment doctrine is a viable defense to all statutory claims.
Therefore,
they
argue
that
Putnam
forecloses
the
dispute
the
argument
advanced by MBS.
¶29
In
Putnam,
enforceability
contract.
of
a
clause
in
Time
revolved
Warner's
around
standard
the
cable
The clause imposed a late-payment fee on customers
who failed to timely pay their bills.
255 Wis. 2d 447, ¶4.
A
class of customers who paid the fees subsequently filed suit to
recover
their
payments,
alleging
that
the
fees
not
Id.
reasonably related to Time Warner's actual costs.
were
The
customers averred that the fees constituted unlawful liquidated
damages.
¶30
Id., ¶10.
The
complaint
set
forth
eight
separate
causes
of
action for monetary damages, including a claim for damages under
"Wisconsin's Trade Practices Act."14
in
a
footnote
that
each
of
these
Id., ¶4 n.2.
claims
for
We explained
damages
was
"premised on a theory of liability that Time Warner imposed an
14
The Putnam opinion does not cite a specific statute. It
is necessary to turn to the appendix that was filed in that case
to determine that the damages were claimed under Wis. Stat.
§ 100.18(1).
13
No.
2008AP1830
unlawful liquidated damages clause" in its contract: "Each count
alleges, in some manner, that Time Warner received payments from
the late fees 'which are not reasonably related to its actual
costs.'"
Id., ¶36 n.12.
¶31
payment
We described the nature and purpose of the voluntary
doctrine
as
follows:
"[M]oney
paid
voluntarily,
with
knowledge of all the facts, and without fraud or duress, cannot
be recovered merely on account of ignorance or mistake of the
law."
Id.,
¶13.
The
voluntary
payment
doctrine
"allows
entities that receive payment for services to rely upon these
funds
and
to
use
them
unfettered
in
future
activities"
and
"operates as a means to settle disputes without litigation by
requiring the party contesting the payment to notify the payee
of its concerns."
¶32
Id., ¶16.
Ultimately, we determined that the voluntary payment
doctrine barred the customers "from recovering monetary damages
for their payment of allegedly unlawful fees without objection
or protest."
Id., ¶3.
We concluded that the customers had paid
the fees without objection or protest, and that their payments
were not made as a result of fraud, duress, or mistake of fact.
Id., ¶3.
¶33
customers'
We
neither
claim
cited
under
to
Wis.
nor
Stat.
individually
§ 100.18(1).
addressed
Rather,
the
we
grouped together all of the remaining claims and collectively
disposed of them in a footnote: "[B]ecause the customers are
precluded
repayment
under
of
the
voluntary
allegedly
payment
unlawful
14
doctrine
liquidated
from
seeking
damages,
the
No.
2008AP1830
additional claims [for money damages] are encapsulated in the
overall [unlawful liquidated damages] theory and are properly
subject to the voluntary payment doctrine."
¶34
The
Putnam
court's
Id., ¶36 n.12.
application
of
the
voluntary
payment doctrine lends superficial support to the defendants'
contention
that
the
doctrine
is
a
defense
to
all
statutory
claims and can likewise be applied to the statutes implicated in
this case.
Nevertheless, "questions which merely lurk in the
record, neither brought to the attention of the court nor ruled
upon, are not to be considered as having been so decided as to
constitute precedents."
Webster
v.
Fall,
266
U.S.
507,
511
(1925).15
¶35
The
Putnam
court
did
not
interpret
Wis.
Stat.
§ 100.18(1), and it did not rule upon whether the legislature
intended the common law doctrine to be a viable defense to that
statutory claim.
Further, a review of the briefs filed in this
15
See also Colby v. Columbia Cnty., 192 Wis. 2d 397, 405,
531 N.W.2d 404 (Ct. App. 1995) aff'd, 202 Wis. 2d 342, 550
N.W.2d 124 (1996) ("[W]e did not consider, and were not asked to
consider [in a previous case], the impact of section 893.13(2),
Stats.
Our statement, although superficially supporting the
City's position here, is thus not precedent."); Fulton Found. v.
Wisconsin Dep't Taxation, 13 Wis. 2d 1, 10, 108 N.W.2d 312
(1961) ("Because the right of the department to raise the issue
of constitutionality was not therein challenged, such case has
no efficacy as a precedent with respect to such question.");
State ex rel. City of Sheboygan v. Cnty. Bd. of Supervisors, 194
Wis. 456, 459, 216 N.W. 144 (1928) ("The relators cannot rely
upon the fact that similar actions have been maintained in which
the right of the municipality to prosecute such actions was not
questioned, because the question now under consideration was
neither raised nor considered in those cases.
Such decisions
are not authority either way upon this question.").
15
No.
2008AP1830
court in Putnam reveals that the customers never advanced that
the statutory claim should be treated any differently than the
common
law unlawful liquidated
damages
claim.
They
did not
argue the issue we consider today.
¶36
In fact, the customers did not make any such argument
in any court.
During the hearing before the circuit court on
Time Warner's motion to dismiss, the customers' attorney did not
discuss or even mention Wis. Stat. § 100.18(1).
Similarly, the
circuit court did not mention the statutory claim when the court
dismissed "all counts in this complaint."
¶37
Likewise, the customers did not make any such argument
in the court of appeals.
listed
the
claims
The opinion of the court of appeals
made,
including
one
Wisconsin's trade practice statutes."
for
"violation
of
Putnam v. Time Warner
Cable of Se. Wisconsin, 2001 WI App 196, ¶3 n.1, 247 Wis. 2d 41,
633 N.W.2d 254.
However, it noted that the customers made no
separate argument regarding any statutory claim: "The customers
present
separate
arguments
challenging
the
circuit
court's
dismissal of both the claim for unlawful liquidated damages and
the claim for declaratory and injunctive relief.
present
a
unified
their other claims."
¶38
cite
challenging
the
dismissal
of
all
Id.
The customers' opening brief to this court did not
to Wis. Stat.
statutes.
argument
However, they
§ 100.18(1)
or
any
other
trade
practices
The only statute cited was the Uniform Declaratory
Judgment Act, Wis. Stat. § 806.04.
In their reply brief, the
customers did not cite any statutes at all.
16
No.
¶39
2008AP1830
Rather, the customers' briefs focus on only one claim
for damages——the common law unlawful liquidated damages claim.
Under
these
common
law
circumstances,
and
statutory
where
no
distinction
between
claims
was
brought
any
to
the
court's
attention, it is unsurprising that this court grouped the claims
for damages together and collectively affirmed their dismissal.
¶40
In
Putnam,
the
question
of
whether
the
voluntary
payment doctrine was a viable defense to a claim under Wis.
Stat. § 100.18(1) may have lurked in the record, but it was
neither brought to the attention of the court nor did the court
specifically
rule
upon
it.
Accordingly,
it
has
not
been
previously decided.16
16
No Wisconsin court has taken up and decided whether the
legislature intended the voluntary payment doctrine to be a
viable defense against any cause of action created by a statute.
Although the court of appeals in this case cited to Butcher v.
Ameritech Corp., 2007 WI App 5, 298 Wis. 2d 468, 727 N.W.2d 546
(Ct. App. 2006), the court misconstrued that case.
In Butcher, it was alleged that Ameritech had collected
taxes for services that were not properly subject to taxation.
Id., ¶1.
Wisconsin's tax code provides a statutory procedure
for recovering payments.
In certain circumstances, taxpayers
can file a claim for a refund with the Department of Revenue
(DOR) under Wis. Stat. § 77.59(4)(a).
The remedial scheme in
Wis. Stat. § 77.59(4)(a) does not require taxpayers to protest
the payment of unlawful taxes prior to seeking a remedy from the
DOR.
The Butcher plaintiffs did not seek the remedy from the DOR
as provided in Wis. Stat. § 77.59(4)(a).
Rather, they filed
suit in the circuit court directly against Ameritech.
17
No.
2008AP1830
case
squarely
the
relevant
IV
¶41
Having
addresses
the
statutes.
In
circuit
court
determined
question
its
that
before
petition
erroneously
no
us,
for
Wisconsin
we
turn
review,
dismissed
its
MBS
to
argued
claims
that
for
the
monetary
relief under three statutes: Wis. Stat. § 100.207, Wis. Stat.
§ 100.18(1), and the Crime Control Act.
focus
of
the
parties'
arguments
statutes, Wis. Stat. § 100.207.
is
However, the primary
on
just
one
of
these
Accordingly, we likewise focus
our discussion on that statute.
A
¶42
When
interpreting
a
statute,
this
court
strives
give effect to the language chosen by the legislature.
to
In so
doing, we consider the statute's scope, context, and purpose.
State ex. rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI
The plaintiffs argued that application of the voluntary
payment doctrine to bar their claims would violate the public
policy as expressed in Wis. Stat. § 77.59.
The Butcher court
disagreed, holding that the voluntary payment doctrine was a
viable defense against the claims filed against Ameritech in
circuit court, even if the doctrine would not apply to claims
made under Wis. Stat. § 77.59(4)(a).
The court of appeals
explained: "Section 77.59(4)(a) expresses the legislature's
intent that a taxpayer need not protest the tax when paying it
in order to recover a refund [from the DOR] under the procedure
established in § 77.59(4)(a).
The statute expresses no intent
and no policy judgment on whether the common law voluntary
payment doctrine should apply in a court action outside the
statutory scheme." Id., ¶31 (emphasis added).
Because there was no Wis. Stat. § 77.59(4)(a) claim at
issue in Butcher, the Butcher court had no occasion to evaluate
the applicability of the voluntary payment doctrine to a cause
of action created by statute.
18
No.
2008AP1830
58, ¶48, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]cope, context, and
purpose are perfectly relevant to a plain-meaning interpretation
of an unambiguous statute as long as the scope, context, and
purpose are ascertainable from the text and structure of the
statute itself[.]").
"We begin by looking to the language of
the statute because we assume that the legislature's intent is
expressed in the statutory language."
Bosco v. Labor & Indus.
Review Comm'n, 2004 WI 77, ¶23, 272 Wis. 2d 586, 681 N.W.2d 157.
¶43
As
always,
a
court
should
avoid
adopting
an
interpretation that is contrary to a "textually or contextually
manifest
statutory
purpose."
Kalal,
271
Wis. 2d 633,
¶49.
"[W]e will liberally construe remedial statutes to suppress the
mischief and advance the remedy that the legislature intended to
afford."
Garcia v. Mazda Motor of America, Inc., 2004 WI 93,
¶8, 273 Wis. 2d 612, 682 N.W.2d 365.
¶44
Wisconsin
Stat.
§ 100.207
"telecommunications services."
or
deceptive
statements
telecommunications
entitled
It prohibits false, misleading,
"with
service,"
is
respect
and
it
to
the
prohibits
provision
of
"bill[ing]
a
customer for any telecommunications service that the customer
did
not
affirmatively
order."
Wis.
Stat.
§§ 100.207(2);
100.207(3)(a).
¶45
Subsection (2) provides:
A person may not make in any manner any statement or
representation with
regard to
the provision
of
telecommunications service, including the rates, terms
or conditions for telecommunications service, which is
false, misleading or deceptive, or which omits to
state
material
information
with
respect
to
the
19
No.
2008AP1830
provision
of
telecommunications
service
that
is
necessary to make the statements not false, misleading
or deceptive.
Wis. Stat. § 100.207(2).
¶46
Subsection (3)(a) provides:
A person may not engage in negative option billing or
negative enrollment of telecommunications services,
including unbundled telecommunications services.
A
person
may
not
bill
a
customer
for
any
telecommunications service that the customer did not
affirmatively order unless that service is required to
be
provided by
law, the
federal communications
commission or the public service commission.
A
customer's failure to refuse a person's proposal to
provide
a
telecommunications
service
is
not
an
affirmative
request
for
that
telecommunications
service.
Wis. Stat. § 100.207(3)(a) (emphasis added).
¶47
Finally,
subsection
(6)
sets
forth
two
remedies for violations of Wis. Stat. § 100.207.17
17
distinct
First, a
In relevant part, Wis. Stat. § 100.207(6) provides:
(a) 1. If a person fails to comply with this section,
any person or class of persons adversely affected by
the failure to comply has a claim for appropriate
relief, including damages, injunctive or declaratory
relief, specific performance and recission.
2. A person or class of persons entitled to relief
under subd. 1. is also entitled to recover costs and
disbursements.
(b) 1. The department of justice . . . or any district
attorney, may commence an action in circuit court in
the name of the state to restrain by temporary or
permanent injunction any violation of this section.
Injunctive relief may include an order directing
telecommunications
providers . . . to
discontinue
telecommunications
service
provided
to
a
person
violating this section or ch. 196 [which regulates
public utilities].
Before entry of final judgment,
the court may make such orders or judgments as may be
20
No.
2008AP1830
person (or class of persons) who is adversely affected by the
violation may file a lawsuit for appropriate relief including
damages.
Wis. Stat. § 100.207(6)(a).
Second, the Department of
Justice (DOJ) or a district attorney may commence a lawsuit in
the name of the State to enjoin violations.
In such an action,
the court may also order the defendant to "restore to any person
any pecuniary loss."
¶48
this
Wis. Stat. § 100.207(6)(b).
The State of Wisconsin, which filed an amicus brief in
case,
explained
that
cramming
is
one
of
a
deceptive billing practices to emerge in the 1990s.
States
General
Accounting
Office,
Overview
of
number
of
See United
the
Cramming
Problem: Statement of Stanley J. Czerwinski (1999).
The State
asserts
1994,
the
intent
to
that
Wisconsin
by
enacting
legislature
Wis.
Stat.
specifically
§ 100.207
acted
with
in
the
provide the means to seek relief in the courts for deceptive and
unauthorized billing.
¶49
The telecommunications company defendants imply that
the real purpose and import of the statute is found in sub.
(6)(b) and sub. (6)(c), the portions of the statute that permit
necessary to restore to any person any pecuniary loss
suffered because of the acts or practices involved in
the action if proof of these acts or practices is
submitted to the satisfaction of the court.
. . .
(c) Any person who violates subs. (2) to (4) shall be
required to forfeit not less than $25 nor more than
$5,000 for each offense.
Forfeitures under this
paragraph shall be enforced by the department of
justice . . . .
21
No.
2008AP1830
the State to file actions and seek forfeitures against crammers.
They indicate that the legislative intent was to give the State
a "very heavy hammer," and that the private right of action in
sub. (6)(a) is largely inconsequential because it is duplicative
of preexisting common law claims.
¶50
The defendants' assertion of legislative purpose fails
to square with the statute's plain language.
§ 100.207
paths,
is
not
a
remedial
one.
In
statute
addition
that
to
the
Wisconsin Stat.
provides
two
enforcement
remedial
mechanisms
provided to the State in subs. (6)(b) and (6)(c), "any person or
class of persons adversely affected by the failure to comply"
with the statute may bring an independent cause of action.18
¶51
dual
In another context involving remedial statutes with a
enforcement
tenants
actions
mechanism,
provide
enforcement powers."
a
we
have
necessary
explained
backup
that
to
the
"private
state's
Shands v. Castrovinci, 115 Wis. 2d 352,
358-59, 340 N.W.2d 506 (1983).
Because "the sheer number of
violations
from
prevent
[the
State]
proceeding
against
all
violators," private actions "constitute an enforcement mechanism
reinforcing
that
of
the justice
department."
Id.;
see
also
Benkoski v. Flood, 2001 WI App 84, ¶17, 242 Wis. 2d 652, 626
N.W.2d 851 ("[P]rivate actions augment enforcement of the [law]
18
By contrast, see Indiana's anti-cramming statutes and
regulations, which do not provide a private right of action.
Lady Di's, Inc. v. Enhanced Services Billing, Inc., 654 F.3d 728
(7th Cir. 2011) (citing Ind. Code § 8-1-29-5(2) and 170 Ind.
Admin. Code § 7-1.1-19(p)).
22
No.
2008AP1830
by the department of justice, which has insufficient resources
to prosecute all violations.").
¶52 Courts interpret statutes to avoid surplusage.
271 Wis. 2d 633, ¶46.
Kalal,
If the legislature had intended nothing
more in sub. (6)(a) than to duplicate preexisting common law
claims, there would have been no need to enact sub. (6)(a) at
all.
¶53
social
We must construe this statute "with a view towards the
problem
which
enacting the law."
the
legislature
was
addressing
Garcia, 273 Wis. 2d 612, ¶8.
when
Based on the
plain language of the statute, the manifest purposes of Wis.
Stat.
§ 100.207
are
to
provide
remedies
for
those
who
are
adversely affected by cramming, and to deter that practice.19
¶54
defense
If
to
the
a
voluntary
person's
payment
cause
of
doctrine
action
were
under
a
sub.
viable
(6)(a),
however, both of these legislative purposes would be severely
undermined.
The application of the voluntary payment doctrine
would significantly limit the circumstances under which a person
19
Wisconsin Stat. § 100.207 was adopted by 1993 Wis. Act
496, which made numerous changes related to the regulation of
telecommunications utilities.
There is scant legislative
history that focuses specifically upon the purpose of Wis. Stat.
§ 100.207.
Information Memorandum 94-27, published by the
Wisconsin Legislative Council, merely provides: "The Act creates
new
consumer
protections,
including . . . [p]rohibiting
deceptive
advertising
of
telecommunications
services
and
limiting telecommunications services sales and bill collection
practices[.]"
The absence of legislative history does not
impede our ability to interpret the statute, given that the
legislative purposes of Wis. Stat. § 100.207 are manifest in the
text of the statute.
23
No.
2008AP1830
would be entitled to a remedy under Wis. Stat. § 100.207.
A
person could maintain a claim under only two circumstances: if
the person noticed the charges and protested before paying; or
if the person could satisfy one of the common law exceptions to
the voluntary payment doctrine.20
Frequently, the person would
be required to overcome the high hurdle of proving all of the
elements of common law fraud.21
¶55
The plain text of Wis. Stat. § 100.207 sets forth a
broad remedy available to persons who are adversely affected by
cramming.
Under the statute, a plaintiff need not protest an
unauthorized charge to seek
voluntary
payment
doctrine
a
remedy.
were
a
Nevertheless,
viable
if
defense,
the
then
plaintiffs would either have to protest or satisfy all of the
elements
of
fraud,
duress,
or
mistake
of
fact.
The
broad
20
At oral argument, counsel for ILD appeared to agree that
the application of the common law doctrine would limit the
remedy to these two circumstances. He stated: "There is not an
element in the statute that says that a protest is required.
But if the common law defense of the voluntary payment doctrine
applies and you have this rare customer . . . his payment was
not the result of fraud, duress, or mistake of fact, then to get
around the voluntary payment doctrine, that customer would have
to protest."
21
For example, in this case, the circuit court concluded
that the voluntary payment doctrine was a viable defense to the
claims for damages and then explained: "For the plaintiffs to
claim that the voluntary payment doctrine does not apply on
account of fraud, they must satisfy the court of three elements:
First that there was a knowingly false representation of fact;
Second, that it was made with intent to defraud and for the
purpose of inducing another to act upon it; and Third, the
recipient must have relied on the representation and must have
been induced to rely on it which act caused the claimed damage."
24
No.
2008AP1830
statutory remedy set forth by the legislature would be severely
circumscribed.
¶56
Application
of
the
voluntary
payment
doctrine would
likewise undermine the legislature's purpose to deter cramming
by limiting the circumstances under which a customer would be
entitled to relief.
The defendant telecommunications companies
explain that whenever a customer notices an unauthorized charge
and complains, the unauthorized charges are cancelled.
As a
result of the customer's protest, no claim for damages would
arise.
If the voluntary payment doctrine were a viable defense,
one could conceive of very few situations in which a private
action would produce an actionable claim for damages.
¶57
by
The statute is meant to deter the practice of cramming
holding
court.
crammers
responsible
for
the
illegal
practice
in
However, application of the common law defense would
reduce the likelihood that crammers would face any consequence
at all for violating the statute.
Rather than being deterred by
the
telecommunications
might
statute's
be
remedial
encouraged
to
scheme,
produce
more
unauthorized
companies
charges,
knowing that customers who do not initially notice deceptive
charges will face high hurdles to recovering those payments in a
court action.
many
private
Applying the voluntary payment doctrine to bar
rights
of
action
could
encourage
cramming,
the
mischief the legislature sought to suppress, by eliminating "a
necessary
backup
to
the
state's
Shands, 115 Wis. 2d at 358-59.
25
enforcement
powers."
See
No.
¶58
A
court's
"contravene
a
purpose."
interpretation
Kalal,
should
be
textually
271
liberally
or
of
a
statute
contextually
Wis. 2d 633,
construed
to
¶49.
should
manifest
Remedial
"suppress
the
2008AP1830
not
statutory
statutes
mischief
and
advance the remedy that the legislature intended to afford."
Garcia, 273 Wis. 2d 612, ¶8.
law
voluntary
payment
Here, application of the common
doctrine
would
encourage
the
mischief
identified by the legislature and circumscribe the remedy it
provided.
That is, application of the common law defense would
undermine
both
textually
manifest
purposes
of
Wis.
Stat.
§ 100.207.
B
¶59
Despite the damage that application of the voluntary
payment doctrine would do the manifest purposes of Wis. Stat.
§ 100.207, the defendants assert that such a result is compelled
by Fuchsgruber, 244 Wis. 2d 758.
They contend that under the
rule of Fuchsgruber, the common law voluntary payment doctrine
applies to all new causes of action created by the legislature
unless the legislature uses express language to the contrary.
If
the
legislature
intended
to
make
the
voluntary
payment
doctrine inapplicable to claims under Wis. Stat. § 100.207, the
defendants
assert
that
it
was
required
to
make
explicit
reference to the doctrine in the text of that statute.
They
contend that the absence of such a reference forecloses MBS's
argument that the common law defense is inapplicable because it
is inconsistent with the purposes of the statute.
26
No.
¶60
At
this
point,
scope
we
and
pause
to
make
consequences
of
2008AP1830
an
observation
the
defendants'
regarding
the
argument.
The defendants' interpretation of Fuchsgruber would
appear to apply equally to all common law doctrines and rules.
Thus,
if
the
defendants
correctly
interpret
Fuchsgruber,
the
legislature would be required to identify and evaluate each and
every potentially relevant common law doctrine and rule, whether
well
known
or
inapplicable
obscure,
whenever
and
it
enumerate
creates
a
new
every
one
statutory
that
is
cause
of
action.22
¶61
myriad
of
Overlaying all new statutory causes of action with the
common law doctrines
and
rules
sweeping change in the law of the state.
would
accomplish
a
This sweeping change
is not mandated by Fuchsgruber.
¶62
In Fuchsgruber, after being injured by a product, the
plaintiff filed a strict product liability claim against the
product's distributor.
244 Wis. 2d 758, ¶¶4-5.
In a strict
product liability claim, the defendant's liability is based not
upon
fault,
product.
¶63
the
but
rather,
upon
the
defective
condition
of
the
Id., ¶22.
Around the same time that the plaintiff was injured,
legislature
amended
the
comparative
negligence
statute.
Under the amended statute, a plaintiff's negligence would be
22
For instance, it appears that under the defendants'
interpretation of Fuchsgruber, the legislature would be required
to routinely add language listing common law doctrines such as
laches, estoppel, unclean hands, voluntary payment, privity,
economic loss, etc.
27
No.
2008AP1830
compared against the negligence of each individual defendant for
purposes of determining liability in an action for negligence.
Id., ¶13.
The amended statute also modified the rules for joint
and several liability, so that only those defendants found to be
at least 51 percent negligent could be jointly and severally
liable for a plaintiff's damages.
¶64
modified
Id.
Relying on the new statutory language that expressly
the
rules
for
negligence
actions,
the
distributor
argued that the legislature intended to modify the rules for
strict product liability actions as well.
statute,
as
applied
to
strict
It argued that the
product
liability
claims,
"operates to protect from liability a defendant who is merely an
innocent member of the chain of distribution, who did nothing to
cause or contribute to the defective condition of the product."
Id., ¶11.
¶65
This
court
disagreed.
We
explained
that
"strict
product liability is not negligence," that negligence and strict
product liability were separate torts with distinct common law
rules, and that "[t]he comparative negligence statute has never
fully applied to strict product liability actions in the first
place[.]"
Id.,
¶27.
We
examined
the
text
of
the
amended
comparative negligence statute and concluded that it did not
"explicitly or even implicitly suggest a legislative purpose to
change the common law of strict product liability."
¶66
As illustrated by this explanation, the focus of our
analysis was discerning the legislature's intent.
further:
Id., ¶26.
"While
the
1995
amendment
28
clearly
We explained
ushered
in
a
No.
2008AP1830
significant development in negligence law, there is nothing in
the language of the new statute that even hints at a legislative
purpose to accomplish such a sweeping change in the common law
of
strict
product
liability
in
this
state."
Id.,
¶29.
Accordingly, we concluded that the amendment to the comparative
negligence statute, "which is silent on the subject, does not
abrogate or alter the common law of strict product liability."
Id., ¶27.
¶67
It
is
in
this
context
that
we
made
the
following
statements, upon which the defendants rely:
It is axiomatic that a statute does not abrogate a
rule of common law unless the abrogation is clearly
expressed and leaves no doubt of the legislature's
intent. Statutes in derogation of the common law are
strictly construed.
A statute does not change the
common law unless the legislative purpose to do so is
clearly expressed in the language of the statute. To
accomplish a change in the common law, the language of
the
statute
must
be
clear,
unambiguous,
and
peremptory.
Id., ¶25.
¶68
The defendants' argument takes this language out of
context.
Fuchsgruber does not stand for the proposition that
every time the legislature creates a new cause of action, it
must enumerate each and every potentially relevant common law
doctrine or rule that is inapplicable to that cause of action.
Such a proposition would place a weighty and unrealistic burden
on the legislature when drafting new statutes.
¶69
In
addition
to
burdening
the
legislature,
the
defendants' interpretation of Fuchsgruber would needlessly tie
29
No.
the court's hands.
2008AP1830
In Fuchsgruber, there was no inconsistency
between the legislature's purpose to modify the rules applicable
to negligence actions and the common law rules that pertain to
strict
liability
claims.
Here,
by
contrast,
the
voluntary
payment doctrine is incompatible with the manifest purposes of
Wis. Stat. § 100.207.
In a case like this, the defendant's
interpretation of Fuchsgruber would force the court to interpret
a statute contrary to the clear legislative intent.
proposition
would
construction
turn on
that
a
its
statute
head
should
contravene its manifest purpose.
¶70
If
the
The
reasoning
legislature
to
established
not
be
canon of
interpreted
to
Kalal, 271 Wis. 2d 633, ¶49.
underlying
wanted
the
Such a
Fuchsgruber
abrogate
the
remains
voluntary
sound.
payment
doctrine, certainly it would be required to do so using express
language.23
However, MBS makes no suggestion that by enacting
Wis. Stat. § 100.207, the legislature intended to fully abrogate
the common law doctrine.
Rather, the argument is only that the
legislature did not intend the doctrine to be a viable defense
to an action under Wis. Stat. § 100.207.
¶71
Whenever the application of a common law doctrine or
rule would undermine the manifest purposes of a statutory cause
of action, the conflict between the statute's manifest purpose
23
See State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825
(1998) (abrogating the common law right to forcibly resist an
unlawful arrest). The Hobson court cited Black's Law Dictionary
for that proposition that "abrogate" means "[t]o annul, cancel,
revoke, repeal, or destroy."
Id., ¶1 n.1 (citing Black's Law
Dictionary 8 (6th ed. 1990)).
30
No.
2008AP1830
and the common law defense "leaves no doubt of the legislature's
intent."
Fuchsgruber, 244 Wis. 2d 758, ¶25.
In a case of such
apparent incompatibility, the legislature necessarily intended
that the common law defense would not be applied to bar claims
under the statute.
¶72
We
Fuchsgruber
find
and
support
the
in
circuit
dismiss in this case.
a
case
court's
that
grant
postdates
of
the
both
motion
to
In Stuart v. Weisflog's Showroom Gallery,
2008 WI 22, 308 Wis. 2d 103, 746 N.W.2d 762, we concluded that
the legislature did not
intend
the
common
law
economic
loss
doctrine to be a viable defense against the Home Improvement
Protection Act (HIPA)24 because it would defeat the purpose of
the
statutory
cause
of
action.
Id.,
¶35
("[T]o
apply
the
[economic loss doctrine] to the HIPA claims would defeat the
public
policies
underpinning
the
HIPA
and
the
remedies
it
provides."); id., ¶33 ("We are satisfied that the [economic loss
doctrine]
cannot
apply
to
statutory
claims,
including
those
under HIPA, because of such public policies.").
¶73
We
also
jurisdictions.
find
support
in
case
law
from
other
Other courts have concluded that the voluntary
payment doctrine was not a viable defense to claims for damages
caused by illegal cramming.
Communications,
Inc.,
290
For example, in Huch v. Charter
S.W.3d
721
(Mo.
2009),
a
state
administrative regulation prohibited the practice of billing for
24
See Wis. Admin. Code § ATCP 110 (Oct. 2004) and Wis.
Stat. § 100.20(5).
31
No.
unsolicited merchandise.
2008AP1830
In a statutory action for violation of
the regulation, the Missouri supreme court concluded that the
voluntary payment doctrine was inapplicable as a defense because
the doctrine "would nullify the protections of the act and be
contrary to the intent of the legislature."
also
Indoor
Billboard/Washington,
Inc.
v.
Id. at 727.
Integra
See
Telecom
of
Washington, Inc., 170 P.3d 10 (Wash. 2007) (concluding that the
voluntary payment doctrine was not a defense in a cramming case
where
the
court
construed
the
statute
liberally
in
favor
of
plaintiffs); Sobel v. Hertz Corp., 698 F. Supp. 2d 1218 (D. Nev.
2010) (concluding that the voluntary payment doctrine did not
bar a claim for damages arising out of the practice of cramming
because it would undermine the legislature's intent).25
¶74
Wis.
Given the conflict between the manifest purposes of
Stat.
§ 100.207
and
the
voluntary
payment
doctrine,
we
conclude that the doctrine is inapplicable to a claim under that
statute.26
dismissed
Accordingly,
MBS's
claims
the
for
circuit
money
court
damages
erred
under
when
Wis.
it
Stat.
§ 100.207.
25
For a contrary position, see Lady Di's, Inc. v. Enhanced
Services Billing, Inc., slip copy, No. 1:09-CV-340-SEB-DML (S.D.
Ind., Nov. 16, 2010), aff'd on other grounds by Lady Di's, Inc.
v. Enhanced Services Billing, Inc., 654 F.3d 728 (7th Cir.
2011).
26
Wisconsin Const. art. XIV § 13 provides: "Such parts of
the common law as are now in force in the territory of
Wisconsin, not inconsistent with this constitution, shall be and
continue part of the law of this state until altered or
suspended by the legislature."
The parties do not argue that
this constitutional provision is implicated in this case.
32
No.
¶75
various
As
ILD
notes,
alternative
however,
reasons
to
its
affirm
2008AP1830
cross-appeal
the
asserted
circuit
court's
dismissal of MBS's Wis. Stat. § 100.207 claims.
See supra, ¶23
n.13.
address
The
court
of
appeals
declined
to
these
alternative arguments because it concluded that the voluntary
payment doctrine was dispositive.
Given our decision that the
voluntarily payment doctrine is inapplicable, we remand to the
court of appeals to address these alternative arguments.
C
¶76
As explained above, we have focused our analysis on
Wis. Stat. § 100.207 because the parties primarily focused on
that statute.
Before concluding, however, we pause to briefly
address MBS's claims under Wis. Stat. § 100.18(1) and the Crime
Control Act.
¶77
We
emphasize
remains
alive
whether
the
and
that
well
doctrine
in
bars
the
voluntary
Wisconsin.
a
cause
The
of
payment
doctrine
determination
action
is
a
of
statute-
specific inquiry.
¶78
At this point, we do not decide whether the voluntary
payment doctrine is a viable defense to a claim under Wis. Stat.
§ 100.18(1).
an
alternative
rationale for dismissing MBS's § 100.18(1) claims.
See supra,
¶21.
The
circuit
court
provided
Although MBS appealed the alternative rationale in its
brief to the court of appeals, it did not include this argument
in
its
petition
for
review
in
this
court.
Under
these
circumstances, we need not now interpret Wis. Stat. § 100.18(1).
Rather,
we
remand
to
the
court
33
of
appeals
to
address
the
No.
2008AP1830
alternative rationale that the claim presented herein does not
come within Wis. Stat. § 100.18(1) and, if appropriate, whether
the voluntary payment doctrine applies to claims made under that
statute.
See State v. Achterberg, 201 Wis. 2d 291, 300 n.5, 548
N.W.2d 515 (1996).
¶79
We
likewise
do
not
decide
whether
the
voluntary
payment doctrine is a viable defense to a cause of action under
the Crime Control Act.
As shown above, the applicability of the
common law doctrine to a statutory cause of action is a statutespecific analysis.
appeals
specifically
Control Act.
behind
Neither the circuit court nor the court of
addressed
the
provisions
of
the
Crime
Although MBS asserts that "the legislative purpose
[the
Crime
Control
Act]
would
be
undermined
if
the
voluntary payment doctrine could be used as a defense," it fails
to examine or even set forth the text of that statute.
the
scant
briefing
interpret it here.
regarding
this
statute,
we
Given
decline
to
See Grube v. Daun, 213 Wis. 2d 533, 544, 570
N.W.2d 851 (1997).
¶80
However, nothing set forth in this opinion should be
construed to restrict the court of appeals from taking up these
arguments
on
remand,
sufficiently preserved.
if
it
determines
that
they
were
If the court of appeals concludes that
MBS stated a claim under Wis. Stat. § 100.18(1), then it will
need
to
address
whether
the
voluntary
payment
doctrine is a
viable defense to a claim under that statute.
Further, the
court of appeals may be required to determine whether the common
34
No.
2008AP1830
law doctrine is a viable defense to a claim under the Crime
Control Act.
V
¶81
In
sum,
we
conclude
that
no
Wisconsin
court
has
addressed whether the legislature intended the voluntary payment
doctrine to be a viable defense against any cause of action
created by a statute.
In Putnam, the question of whether the
voluntary payment doctrine was a viable defense to a claim under
Wis. Stat. § 100.18(1) may have lurked in the record, but it was
neither
brought
to
the
specifically addressed.
attention
of
the
court
nor
was
it
Accordingly, it was not decided by this
court.
¶82
We further determine that the defendants misinterpret
Fuchsgruber.
Application of the common law voluntary payment
doctrine would undermine the manifest purposes of Wis. Stat.
§ 100.207.
Under these circumstances, the conflict between the
statute's purpose and the common law defense leaves no doubt
that the legislature intended that the common law defense should
not be applied to bar claims under the statute.
¶83
Accordingly, we reverse and remand to the court of
appeals to address ILD's cross-appeal and, if appropriate, any
previously
unresolved
appellate
issues
regarding
Wis.
Stat.
§ 100.18(1) and the Wisconsin Organized Crime Control Act.
By
the
Court.—The
decision
of
the
court
of
appeals
reversed, and the cause is remanded to the court of appeals.
¶84
SHIRLEY S. ABRAHAMSON, C.J., did not participate.
35
is
No. 2008AP1830.dtp
¶85
DAVID T. PROSSER, J.
in part).
(concurring in part, dissenting
The voluntary payment of money by one person to
another upon a demand of payment, with knowledge of the facts
and
without
fraud
or
duress,
generally
bars
the
payor
from
recovering the money from the payee in subsequent litigation.
This is the essence of the voluntary payment doctrine.
See
Putnam v. Time Warner Cable of Se. Wis., 2002 WI 108, ¶¶13-15,
255 Wis. 2d 447, 649 N.W.2d 626.
¶86
Jur.
2d
The voluntary payment doctrine is described in 66 Am.
Restitution
and
Implied
Contracts
§
92
(2011)
follows:
Unjust enrichment contemplates an involuntary or
nonconsensual transfer, unjustly enriching one party.
A defendant is not unjustly enriched and therefore not
required to make restitution where the benefit was
conferred by a volunteer.
Thus, a person cannot use
the
courts
to
recover
money
voluntarily
or
consensually paid with full knowledge of all of the
facts and without fraud, duress, or extortion in some
form.
This doctrine is often referred to as the
"voluntary payment doctrine" or the "volunteer rule"
and is considered an exception to the principle of
restitution.
Thus, it is universally recognized that
money voluntarily paid [by a person] under a claim of
right to payment and with knowledge of the facts by
the person [seeking to recover] cannot be recovered on
the ground that the claim was illegal, or that there
was no liability to pay in the first instance.
(Footnotes omitted.)
1
as
No. 2008AP1830.dtp
¶87
The voluntary payment doctrine,1 which is heavily fact-
dependent, has deep roots in Wisconsin law.
The doctrine is
discussed repeatedly in cases involving payments, especially tax
payments, to governments.2
Crosse,
105
Wis. 2d 152,
G. Heileman Brewing Co. v. City of La
312
N.W.2d 875
(Ct.
App.
1981);
Interstate Dep't Stores v. Henry, 224 Wis. 394, 272 N.W. 451
(1937); Schlesinger v. State, 198 Wis. 381, 223 N.W. 856 (1929);
Rutledge v. Price Cnty., 66 Wis. 35, 27 N.W. 819 (1886); see
Simmons Co. v. Tax Comm'n, 209 Wis. 232, 244 N.W. 610 (1932);
Fox Valley Canning Co. v. Vill. of Hortonville, 207 Wis. 502,
1
The term "voluntary payment doctrine" appears to be of
relatively recent origin. Past cases referred to the "voluntary
payment rule," G. Heileman Brewing Co. v. City of La Crosse, 105
Wis. 2d 152, 162, 312 N.W.2d 875 (Ct. App. 1981), "the doctrine
of voluntary payment," Frederick v. Douglas Cnty., 96 Wis. 411,
423, 71 N.W. 798 (1897) (Winslow, J. concurring), or just
"voluntary payment," Elliott v. Swartwout, 35 U.S. 137, 153
(1836). Regardless of the name, the concept permeates the law.
2
For a background of the voluntary payment doctrine in the
Wisconsin state income tax context, see generally Maurice M.
Weinstein, Income Tax Refunds in Wisconsin, 16 Marq. L. Rev. 25,
30-32 (1931).
The article discusses the voluntary payment
doctrine in substantially its modern form. Id. at 30.
While the voluntary payment doctrine is often discussed in
the context of payments to governments, the same rules do not
necessarily apply in the context of payments from government
agents. See Joshua E. Dodge, How To Sue the Government, 8 Marq.
L. Rev. 267, 285 (1924) ("When . . . a public officer . . . pays
out
to
an
individual
money
which
the
law
did
not
authorize . . . the Government may recover [it] back, unhampered
by any of the rules of voluntary payment . . . applicable as
between individuals."); but see Frederick, 96 Wis. at 423
(Winslow, J. concurring) (suggesting that the opinion of the
court applied the doctrine of voluntary payment to payments made
by public officials).
Joshua Dodge was a member of this court
from 1898-1910.
Portraits of Justice 28 (Trina E. Gray et al.
eds., 2d ed. 2003).
2
No. 2008AP1830.dtp
242 N.W. 142 (1932); Roehl v. City of Milwaukee, 141 Wis. 341,
124 N.W. 400 (1910); Parcher v. Marathon Cnty., 52 Wis. 388, 9
N.W. 23 (1881); Harrison v. City of Milwaukee, 49 Wis. 247, 5
N.W.
326
(1880).
However,
the
court
doctrine outside the tax context.
also
has
applied
the
E.g., Putnam, 255 Wis. 2d 447
(liquidated damages in a cable television contract); Burgess v.
Commercial Nat'l Bank of Appleton, 144 Wis. 59, 128 N.W. 436
(1910) (excess interest paid on bonds); Raipe v. Gorrell, 105
Wis.
636,
81
N.W.
1009
(1900)
(payment
of
wages
during
an
employee's absence); Custin v. City of Viroqua, 67 Wis. 314, 30
N.W. 515 (1886) (excess payment for liquor license).
¶88
The voluntary payment doctrine is neither unique to
Wisconsin nor something new.
To illustrate, in 1836 the United
States Supreme Court discussed the application of the doctrine
to an overcharge of a duty by a collector at the Port of New
York.
been
The Court determined that when a voluntary payment has
made,
Elliott
v.
"no
action
Swartwout,
will
35
lie
U.S.
to
137,
recover
153
back
(1836).
the
money."
The
Court
acknowledged, however, that if a payor gives notice to the payee
that the demand for payment may be illegal——that is, if the
payor protests the payment——then the voluntary payment doctrine
does not bar recovery by the payor.
¶89
Id.
In reaching this decision, the Court relied on several
English cases——dating back two centuries.
One case, Brisbane v.
Dacres, (1813) 128 Eng. Rep. 641 (C.P.) 645; 5 Taunt. 143, 15253 (opinion of Gibbs, J.), describes the doctrine as follows:
We must take this payment to have been made under a
demand of right, and I think that where a man demands
3
No. 2008AP1830.dtp
money of another as a matter of right, and that other,
with a full knowledge of the facts upon which the
demand is founded, has paid a sum, he never can
recover back the sum he has so voluntarily paid.
It
may be, that upon a further view he may form a
different opinion of the law, and it may be, his
subsequent opinion may be the correct one. If we were
to hold otherwise, I think many inconveniences may
arise; there are many doubtful questions of law: when
they arise, the Defendant has an option, either to
litigate the question, or to submit to the demand, and
pay the money.
I think, that by submitting to the
demand, he that pays the money gives it to the person
to whom he pays it, and makes it his, and closes the
transaction between them.
He who receives it has a
right to consider it as his without dispute: he spends
it in confidence that it is his; and it would be most
mischievous and unjust, if he who has acquiesced in
the right by such voluntary payment, should be at
liberty,
at
any
time
within
the
statute
of
limitations, to rip up the matter, and recover back
the money.
He who received it is not in the same
condition: he has spent it in the confidence it was
his, and perhaps has no means of repayment.
¶90
Thus, in 1813, an English court eloquently described
the rationale underlying the doctrine of voluntary payment: to
promote
finality
in
commercial
transactions
and
to
protect
payees who in good faith spend the money they receive.
¶91
Any suggestion that the voluntary payment doctrine is
so old that it is now a dead letter is belied by a decision of
the United States Court of Appeals for the Seventh Circuit in
2010.
Spivey v. Adaptive Marketing LLC, 622 F.3d 816 (7th Cir.
2010).
In that decision the court, in an opinion written by
Retired
Justice
Sandra
Day
O'Connor,
sitting
by
designation,
explained that "[t]he voluntary payment doctrine has long been
recognized in common law" and cited Illinois cases as recent as
2005, to determine that the voluntary payment doctrine barred
the plaintiff's claims.
Id. at 822-24.
4
No. 2008AP1830.dtp
¶92
the
Having established both the lineage and vitality of
voluntary
payment
doctrine,
I
freely
concede
that
common law doctrine may be abrogated by legislation.
this
As far
back as 1929, Corpus Juris explained that:
Payment
1X. Recovery of Payments
A. Voluntary Payments——1. Recoverability in General
§ 280
Except where otherwise provided by statute it is
a well settled general rule that a person cannot,
either by way of set-off or counterclaim, or by direct
action, recover back money which he has voluntarily
paid with a full knowledge of all the facts, and
without any fraud, duress, or extortion, although no
obligation to make such payment existed.
48 C.J. § 280 (1929) (footnotes omitted).
Notably, the only statute cited to support the exception was
from Louisiana, a code state not operating under common law.
¶93
Nonetheless, the common law may be abrogated.
This
fundamental principle is reflected in Article XIV, Section 13 of
the
Wisconsin
Constitution
which
reads:
"Such
parts
of
the
common law as are now in force in the territory of Wisconsin,
not inconsistent with this constitution, shall be and continue
part of the law of this state until altered or suspended by the
legislature."
¶94
Wis. Const. art. XIV, § 13 (emphasis added).
The question inevitably arises when we interpret this
section: How do we know when the legislature has "altered or
suspended" some feature of the common law?
This question was
addressed in Kranzush v. Badger State Mutual Casualty Co., 103
Wis. 2d 56, 74, 307 N.W.2d 256 (1981).
5
The court said:
No. 2008AP1830.dtp
"It is an accepted axiom of law in Wisconsin that:
"'Statutes are not to be construed as changing
the common law unless the purpose to effect such
change is clearly expressed therein.
To have such
effect "the language [of the statute] must be clear,
unambiguous and peremptory."'
Wis. Bridge & Iron Co.
v. Indus. Comm'n, 233 Wis. 467, 474, 290 N.W. 199
(1940)."
Maxey
v.
Redevelopment
Auth.
of
Racine,
94
Wis. 2d 375,
399,
288
N.W.2d 794
(1980).
The
legislative intent to change the common law must be
expressed "beyond any reasonable doubt."
Grube v.
Moths, 56 Wis. 2d 424, 437, 202 N.W.2d 261 (1972);
Burke v. Milwaukee & Suburban Transp. Corp., 39
Wis. 2d 682, 690, 159 N.W.2d 700 (1968).
Id.; see also Meek v. Pierce, 19 Wis. 318 (*300), 322 (*303)
(1865) ("[T]he rules of the common law are not to be changed by
doubtful implication.
To give such effect to the statute, the
language must be clear, unambiguous and peremptory."); NBZ, Inc.
v. Pilarski, 185 Wis. 2d 827, 836, 520 N.W.2d 93 (Ct. App. 1994)
("A statute in derogation of the common law must be strictly
construed
so
as
to
have
minimal
effect
on
the
common
law
rule.").
¶95
the
context
product
2001
Ten years ago this court applied these principles in
WI
of
a
liability.
81,
244
comparative
negligence
Fuchsgruber
Wis. 2d 758,
v.
628
statute
Custom
and
Accessories,
N.W.2d 833.
strict
Inc.,
The
court
determined that an amendment to that statute did not apply to
strict product liability claims.
Id., ¶30.
In reaching this
conclusion, the court stated:
It is axiomatic that a statute does not abrogate a
rule of common law unless the abrogation is clearly
expressed and leaves no doubt of the legislature's
intent. Statutes in derogation of the common law are
6
No. 2008AP1830.dtp
strictly construed.
A statute does not change the
common law unless the legislative purpose to do so is
clearly expressed in the language of the statute. To
accomplish a change in the common law, the language of
the
statute
must
be
clear,
unambiguous,
and
peremptory.
Id., ¶25 (citations omitted).
¶96
clearly
I am satisfied that Wis. Stat. § 100.207(3)(a) is so
designed to
particular
unfair
protect
practices
telecommunications
in
billing
that
consumers
it
from
would
be
unreasonable to permit the voluntary payment doctrine to nullify
the effect of the statute.
Subsection (3)(a) reads as follows:
(3) SALES PRACTICES. (a) A person may not engage
in negative option billing or negative enrollment of
telecommunications
services,
including
unbundled
telecommunications services.
A person may not bill a
customer for any telecommunications service that the
customer did not affirmatively order unless that
service is required to be provided by law . . . .
A
customer's failure to refuse a person's proposal to
provide
a
telecommunications
service
is
not
an
affirmative
request
for
that
telecommunications
service.
Wis. Stat. § 100.207(3)(a).
The evils prohibited by subsection
(3)(a) are not ambiguous, and the private remedies created to
attack these evils are plainly identified in subsection (6)(a)
of the section.
Among the evils prohibited is cramming, an
attempt to get customers to "unwittingly pay the unauthorized
charges"
that
appear
Majority op., ¶6.
on
their
telecommunications
bills.
Even if these payments are not obtained by
fraud, their voluntariness is certainly questionable.
Cramming
charges
and
are
prohibited
under
subsection
(3)(a)
the
legislature provided a specific remedy in subsection (6)(a) of a
right
to
recover
these payments
7
when
the
payments
have
been
No. 2008AP1830.dtp
made.
In
sum,
subsection
(3)(a)
targets
demands
for
unauthorized charges and subsection (6)(a) provides for recovery
of those charges when
paid.
Quasi-voluntary
payment
of
the
§ 100.207(2)
to
the
charges does not bar recovery.
¶97
The
application
of
Wis.
Stat.
alleged facts is not so clear because subsection (2), which is
labeled
from
"ADVERTISING
subsection
AND
(3),
SALES
which
REPRESENTATIONS,"
is
labeled
is
"SALES
different
PRACTICES."
Applying the sales language of subsection (2) to the billing
practices of "cramming" and "slamming"3 is probably stretching
the subsection beyond what it was intended to cover.
¶98
The
bottom
line,
however,
is
that
the
voluntary
payment doctrine does not require the dismissal at this time of
the claims in this case under this anti-cramming/anti-slamming
statute.
We
need
not
answer
whether
the
voluntary
payment
doctrine could ever apply to a claim under Wis. Stat. § 100.207.
¶99
analysis.
Wisconsin
Stat.
§ 100.18
requires
a
different
This sweeping statute can be traced back to Chapter
510, Laws of 1913, which created section 1747k of the statutes.
Section 1747k read:
Any person, firm, corporation or association who,
with intent to sell or in any wise dispose of
merchandise, securities, service, or anything offered
by such person, firm, corporation or association,
directly or indirectly, to the public for sale or
distribution,
or
with
intent
to
increase
the
3
"'Slamming' is the illegal practice of switching a
consumer's traditional wireline telephone company for local,
local toll, or long distance service without permission."
FCC
Encyclopedia,
http://www.fcc.gov/encyclopedia/slamming
(last
visited Feb. 17, 2012).
8
No. 2008AP1830.dtp
consumption thereof, or to induce the public in any
manner to enter into any obligation relating thereto,
or to acquire title thereto, or an interest therein,
for the purpose of defrauding the public, makes,
publishes, disseminates, circulates, or places before
the public, or causes, directly or indirectly, to be
made, published, disseminated, circulated, or placed
before the public, in this state, in a newspaper or
other publication, or in the form of a book, notice,
handbill, poster, bill, circular, pamphlet, or letter,
or in any other way, an advertisement of any sort
regarding
merchandise,
securities,
service,
or
anything so offered to the public, which advertisement
contains any assertion, representation or statement of
fact which is untrue, deceptive or misleading, shall
be guilty of a misdemeanor, and shall upon conviction
thereof be punished by a fine of not less than ten
dollars nor more than two hundred dollars, or by
imprisonment in the county jail not less than ten days
nor more than ninety days, or by both such fine and
imprisonment; providing that nothing herein shall
apply to any proprietor or publisher of any newspaper
or magazine who publishes, disseminates or circulates
any such advertisement without knowledge of the
unlawful or untruthful nature of such advertisement.
§ 1747k, ch. 510, Laws of 1913.
This one-paragraph provision
has been amended at least 45 times over the past century and has
evolved into a lengthy (nearly 2600 words), very complex statute
that is difficult to cabin and difficult to analyze.
¶100 To
legislature
suggest
in
abrogated
the
the
majority
voluntary
opinion
payment
that
doctrine
the
when
it
adopted Wis. Stat. § 100.18 is both unnecessary and unfounded.
¶101 Because
proposition
the
either
majority
opinion
analytically
or
cannot
support
historically,
it
such
simply
concludes that:
Whenever the application of a common law doctrine
or rule would undermine the manifest purposes of a
statutory cause of action, the conflict between the
statute's manifest purpose and the common law defense
"leave[s] no doubt of the legislature's intent."
9
a
No. 2008AP1830.dtp
Fuchsgruber, 244 Wis. 2d 758, ¶25. In a case of such
apparent incompatibility, the legislature necessarily
intended that the common law defense would not be
applied to bar claims under the statute.
Majority op., ¶71.
With this conclusion, the majority opinion
apparently
this
abandons
court's
longstanding
methodology
in
evaluating when the legislature has abrogated the common law.
The methodology that the majority applies——that is, to search
for some conflict with a statutory purpose——weakens all common
law doctrines.
This methodology leaves the viability of all
common law defenses in doubt.
¶102 The majority opinion casts a cloud of uncertainty over
commercial transactions in this state.
Its assurance that "the
voluntary payment doctrine remains alive and well in Wisconsin,"
majority op., ¶77, will prove hollow if its discussion of the
doctrine in relation to Wis. Stat. § 100.18 is maintained.
¶103 The
proposition
majority
that
Wis.
opinion
Stat.
invites
§ 100.18
consideration
abrogated
the
of
the
voluntary
payment doctrine by asserting that the relationship between the
voluntary payment doctrine and § 100.18 was never "brought to
the attention of the [Putnam] court [in 2002] nor did the court
specifically
rule
upon
it.
Accordingly,
not . . . decided" by the court in Putnam.
it
[w]as
Majority op., ¶40.
I disagree.
¶104 Putnam discussed the first amended complaint that was
dismissed
with prejudice
Wis. 2d 447,
¶¶1,
4
by
n.2.
the
The
circuit
opinion
court.
cites
Putnam,
the
255
multiple
theories in the amended complaint, including unlawful liquidated
damages,
unjust
enrichment,
restitution,
10
and
violation
of
No. 2008AP1830.dtp
Wisconsin's Trade Practices Act.
by
the
voluntary
payment
Id., ¶4 n.2.
doctrine.
All are affected
The
Wisconsin
Trade
Practices Act is identified as Wis. Stat. § 100.18 in Count VII
of
the
amended
complaint
cited
in
Putnam's
brief.
It
was
discussed by the circuit court, and it was referred to in the
published court of appeals decision, Putnam v. Time Warner Cable
of
Se.
Wis.,
N.W.2d 254,
2001
WI
196,
affirmed
which
App
¶3
the
n.1,
circuit
247
Wis. 2d 41,
court.
The
633
Putnam
majority, in turn, affirmed the circuit court and the court of
appeals in relation to the voluntary payment doctrine.
¶105 In doing so, the Putnam court said:
"In analyzing
this case, we . . . take as true all allegations made in the
customers' amended complaint and draw all reasonable inferences
in
favor
(emphasis
of
the
customers."
added).
The
Putnam,
court
also
255
cited
Wis. 2d 447,
66
Am.
Jur.
¶11
2d
Restitution and Implied Contracts § 108 (2001), a precursor to
§ 92 of the 2011 edition cited above.
Unjust enrichment and
restitution are part of the 2001 Am Jur analysis.
Putnam, 255
Wis. 2d 447, ¶13.
¶106 In the present case the majority opinion takes the
fact that the Putnam court "collectively disposed of" the stated
claims, majority op., ¶33, as support for the proposition that
there ought to be a difference between statutory and common law
claims.
Curiously,
identical
treatment
the
of
majority
statutory
opinion
and
common
takes
law
our
claims
past
as
support for the proposition that the claims ought to be treated
differently.
Likewise, the opinion's analysis ignores that we
11
No. 2008AP1830.dtp
determined that the voluntary payment doctrine applied to all
claims in Putnam——statutory and common law alike.
Putnam, 255
Wis. 2d 447, ¶36 n.12.
¶107 The Putnam court addressed the possibility that the
legislature
could
act
to
supersede
the
voluntary
payment
doctrine in a paragraph strongly affirming the doctrine:
Adoption
of
the
customers'
argument
would
effectively destroy the voluntary payment doctrine.
The doctrine presupposes mistaken or wrongful conduct
by the payee.
To allow someone who made voluntary
payment without objection to claim restitution, based
only on an allegation that some wrongful conduct by
the payee caused the payment of a fee, would nullify
the doctrine in Wisconsin. We conclude that the merit
of a claim and the underlying wrongdoing of the
defendant do not undercut the applicability of the
doctrine, absent fraud, duress, or mistake of fact.
The legislature has the power to create additional
exceptions to the voluntary payment doctrine in
particular circumstances.
Putnam, 255 Wis. 2d 447, ¶35 (emphasis added).
¶108 It is unlikely that the court would have acknowledged
the legislature's power "to create additional exceptions to the
voluntary
payment
doctrine"
if
the
court
thought
that
the
legislature had already done so in adopting Wis. Stat. § 100.18.
¶109 I believe this case may go forward under Wis. Stat.
§ 100.207(3)(a) because the statute prohibits specific billing
practices
person's
in
telecommunications
"failure
to
refuse"
an
and
actually
unauthorized
addresses
charge.
a
This
alters the voluntary payment doctrine so that claims under the
statute are not required to be dismissed in this case at this
stage
in
the proceedings.
The
legislature
remedy for overpayment of certain charges.
12
provided
a clear
The legislature was
No. 2008AP1830.dtp
clear, unambiguous, and peremptory in this paragraph; the court
need not go further and alter the law of abrogation of the
common law.
¶110 I concur with the court's decision that the dismissal
of
the
claim
under
Wis.
Stat.
§ 100.207
must
be
reversed.
However, I disagree with the court's statement of the law and
its decision regarding the other claims.
Therefore, I cannot
join the court's opinion.
¶111 For the foregoing reasons, I respectfully concur in
part and dissent in part.
¶112 I
am
authorized
to
state
that
GABLEMAN joins this concurrence/dissent.
13
Justice
MICHAEL
J.
No. 2008AP1830.dtp
1
]]>
