*1 We, therefore, conclude that the order of the circuit county quashing court for Corley’s Adams application corpus for habeas must be affirmed. affirm the
We order of the circuit court for Waukesha county quashing respect the writ in Stone, and we af- firm the order of county the circuit court for Adams quashing respect Corley. the writ in
By the Court. —Orders affirmed. Wisconsin, Plaintiff-Appellant-Petitioner,
State
v. Management corpo Excel a Wisconsin Services, Inc., ration, Viking Waterproofing Corp., Insulation & Viking Corp., Viking Pools, as Wisconsin a/k/a domestic corporations, John Picciano, Bob Malec and Kirschman, individually Robert and as officers of Viking Corporations, Excel and Keith Jim and/or Rosenthal, individually Kalland and Mike and as em ployees agents corporations, Defendants, of said savings association, a Wisconsin and loan Savings,
Defendant-Respondent.
Supreme Court Argued January 4, No. 81-911. 1983. Decided March 1983.
(Also reported 312.) in 331 N.W.2d *2 argued by plaintiff-petitioner the cause was For the attorney general, on Craig, with whom A. Bruce assistant general. Follette, La Bronson the briefs was C. defendant-respondent a brief there was For the Vergeront, Davis, Kuelthau, Anthony J. Caronna and Stover, S.C., and Steven Goodland, attorneys, Werner & counsel, all of Mil- Epstein Epstein, of Levine & M. argument Epstein. waukee, by Mr. and oral unpublished decision DAY, J. review of This is a February 23, which appeals of the court of filed court for Waukesha the circuit affirmed an order of Savings’ granting Judge, county, Buckley, P. John upon which claim state a failure to motion to dismiss for granted. relief could be Do review is: sections considered on The issue to be Stats, state to 100.20(6), allow the
100.18(11) (d) and join assignee of contracts allegedly Chapter which were obtained in violation of Ag. 110, Code,1 Wisconsin Administrative and secs. 100.18(1) 1979-80, it 100.18(9) (a),2 when regulation dealing Chapter Ag. 110 is an administrative improvements promulgated sale home under sec. 100.- 20(2), Stats. Stats, as follows: Section reads advertising. person, firm, corporation (1) or “Fraudulent No sell, agent employe association, thereof, or with intent or consumption any dispose distribute, of or in wise increase the estate, merchandise, employment, service, any securities, real anything corporation person, firm, or offered or asso- such agent employe thereof, directly indirectly, ciation or or to the or public sale, hire, distribution, or use with intent any public induce the manner to enter into contract *3 obligation relating purchase, sale, any hire, to the or use lease of estate, merchandise, securities, employment service, real or shall make, place public, publish, disseminate, circulate, before the or directly cause, indirectly, made, published, or or to be dissem- inated, circulated, placed public, state, or before the in in this newspaper, magazine publication, or other in the form of a or book, notice, handbill, bill, circular, pamphlet, sign, poster, letter, placard, card, label, any station, or over or radio television or way any foregoing, in other similar or dissimilar to the an ad- vertisement, announcement, any representation statement or of public relating hire, kind the purchase, sale, to to such use or estate, lease merchandise, securities, of such real or em- service ployment thereof, or to the terms or conditions which advertise- ment, announcement, representation any statement or contains assertion, representation untrue, or statement of fact which is deceptive misleading.” or Stats, 100.18(9) (a), “Section reads as follows: advertising. (9) (a) deceptive “Fraudulent It is deemed ... advertising, person meaning section, any within the of or this any agent employe or make, publish, disseminate, thereof to cir- place public or culate newspaper before the in in this state publication or other book, notice, handbill, or in of the form poster, bill, circular, pamphlet, sign, letter, placard, card, label any or over any way radio or television in station or similar or foregoing, dissimilar to the advertisement, announcement, representation statement or any public relating of kind to the alleged assignee engaged prohibited
is not the the ? activities assignee may
We that an conclude of such contracts joined party Accordingly, as a be defendant. we reverse appeals the decision of of the court and remand the case to the trial court. had been added in a filed state consumer
an amended 100.18 pursuant to secs. protection undertaken action (11) (d) 100.20(6),3 1979-80. merchandise, estate, sale, purchase, hire, of use or real lease to securities, employment to the terms or conditions or service or repre- advertisement, announcement, or statement thereof which part plan or effect of or sentation is of scheme estate, sell, purchase, hire, to or real which is not use lease the employment merchandise, securities, or as advertised.” service Stats, 100.18(11) (d), as reads follows: Section advertising. (d) depart- (11) . . . . . . Fraudulent “100.18 upon attorney, department justice or district ment may informing department justice, action in commence an by temporary to restrain circuit the name of state court permanent injunction any The court section. violation may prior discretion, entry judgment, make such in its of final any person necessary judgments to restore orders or practices in- any pecuniary the acts or because of loss suffered provided proof action, to the is submitted in the thereof volved justice may department sub- satisfaction of the court. poena persons, require production of other docu- books and authority ments, request department its to exercise par. investigation alleged (c) aid in the violations under of this section.” *4 Stats, Section reads as follows: practices. (6) competition de- . . . The of and “Methods trade partment may the name court in action in circuit commence an injunction by the temporary permanent of to or the state restrain may any The court violation section. of order issued under this discretion, entry judgment prior make such in its to of final any judgments person necessary restore to orders or to as any pecuniary practices in- loss suffered because of the acts action, provided proof volved in submitted to the the thereof is July 24, On the state filed an complaint amended in an action in the circuit court county for Waukesha Management Inc., Excel Services, Viking Insula tion Waterproofing and Corp., certain officers and em ployees corporations of the Viking, (Excel, al., et are collectively opinion referred in to this Viking) as and Savings. complaint requested The the trial court by permanent restrain injunction violations of certain protection consumer statutes and administrative rules Viking. alleged that certain of the de fendants, Savings, engaged decep but not First had practices swimming pools. tive in the sale of The com plaint alleged engaged that the in the defendants had obtaining use of sales, “bait and switch”4 tactics had misrepresented staff,5 the of had identities their sales misrepresented pools had the manufacturer of the and being a falsely represented a “model” with pool the as warranty.6 twenty year full authority department its use satisfaction of the court. investigate issued order violations in ss. 93.14 and 93.15 under this section.” “ prac According complaint, to the utilized [defendants price advertising swimming newspaper pool tice approximately responded $1,000. customer When a $600 Viking through advertisement, representatives, use the poorly through suggestions, dis constructed models couraged disparaged pool purchase advertised higher-priced pool having alleged switched the customer to a price approximately $7,000.” retail techniques alleged effectuate the sales It is in order to falsely represent used, people being that were the sales would being company or dis executives themselves to customers pool special tributors for a who could authorize the sale of the permit pool price reduced if the to be customer used would purchasers. prospective as a model to be shown to other rep alleged warranty by Viking It was described warranty. being twenty year However, resentatives as a full
warranty accompanying warranty pool was a limited which sharply decreasing included which deductible amount would *5 equitable in the complaint requested relief The also be- 1) pecuniary suffered of losses form of réstoration involved, 2) practices reformation of the and cause acts cus- of what to reflect value each of the contracts the voiding actually received, 3) the contracts tomer of quantum utilizing doctrine of with the court then pool.7 appropriate meruit of each to determine value Although allege complaint any involvement did not allege Savings prohibited conduct, in the it did First knowledge Savings had of that First actual of several Viking. defendant, complaint also al- The violations Viking leged that informed customers of had certain Savings deceptive practices First the use of of practices Savings prior of the of certain First had notice Viking because who were officers defendants Savings in another dealt had with those individuals business.8 allegations, following complaint also contains the we
which for review must assume true. be alleged September,
It is that between March Viking swimming pools with sales sold 106 total Viking ar- $478,659.66 had an to Wisconsin residents. whereby pur- rangement pool Savings with First if a through arranged financing, chaser wanted it would fi- Savings. Forty-four pool purchases were of the pool paid by purchaser repair became have to be if necessary. Viking. requested also civil forfeitures prior alleged It that First had association waterproofing run out two basement which been businesses had Viking of the same location as and which had same some employees Viking. officers and financed water proofing virtually swimming work the same manner it financed purchases. pool waterproofing Both businesses are now defunct. them, subject operation, One of while was the aof Federal Trade Commission cease and desist order. *6 Savings. nanced First The contractual documents specified provided by were Savings. either First Some financing conjunction of done in this was with second mortgages on alleged customers’ homes. The state financing arrangement this assignment constituted an Viking’s rights of Savings. contract to First complaint alleged
The Viking presently also is significant without financial resources cover the obli- gations arising from the contracts. August 28, 1980,
On First filed a number of April 8, 1981, motions to Judge Buckley dismiss. On is- granting sued an Savings’ order motion to dismiss grounds on the that the failed to state a claim upon granted. which relief could be appealed. February 1982, state 23, On court the appeals of affirming issued a decision the trial court’s appeals order. The court of concluded that secs. 100.18 (11) (d) Stats., and 100.20(6), allowed the state to seek pecuniary only restoration of losses from those parties guilty found of the which acts secs. 100.18 proscribe. charged 100.20 Since First was not sections, of violations those no claim stated was against it. Savings initially argues attorney general that the authority
lacks
prosecute
to initiate and
action
this
Savings. Citing
Sharp,
Estate
63 Wis.
of
254, 260,
2d
(1974),
However, specifically the statutes cited above acting attorney general general (and on Department behalf Agriculture, of the Trade & Con- Protection) sumer power this action.9 to initiate justice department 100.18(11) (d) Section reads: . The “. . may . . . commence an action. . .”. attorney general given power prosecute is holding standing Sharp,
this action statute and the alone, preclude attorney general pro- not would from ceeding with action. 100.18(11) (d) 100.20(6)
Both secs. authorize enjoin state to commence an action to a violation respective authorization, statutes. In addition to this following language: each statute contains the discretion, prior entry “The court in its judgment judgments final such make orders necessary pecuniary person any to restore to loss practices in the suffered because of the acts or involved action, provided proof to the satis- thereof submitted *7 faction of the court.” language expressly requires that restora-
This neither solely by parties pecuniary tion of made losses be charged it ex- with of nor does violations the statute pressly recovery party has not authorize from a who requires language only violated the statute. The any any pecuniary relief court ordered serve to restore by and person of the acts loss suffered the result practices in the action. involved here, statutory the at-
Under the considered scheme enjoin torney general bring actions to is authorized is com- an action violations of the statutes. Once such pe- menced, may of court restoration the trial order prac- cuniary of the which are a result losses suffered as forming tices for the action. the basis pe- may Individuals, right, to recover in own sue their cuniary these violations of losses suffered as a result of Agriculture, department 100.20(6) [of Section “The reads: an action and commence Trade Consumer Protection] .” circuit court name of the state. . . in the general this case states acting Department Justice and “on of behalf of the Wisconsin Department Agriculture, Protection...." and Consumer of Trade
487 assignee Viking, an statutes.10 As of the contracts from Savings “subject takes each contract all claims buyer of defenses or his successor in interest.” Chapter Ag., sec. Wis. Adm. If Code. indi- brought seeking viduals actions recovery resulting pecuniary for losses from violations statutes, assignee these as an the con- proper tracts would be defendant. determining entity
In whether prop- which could erly joined be undertaken actions seeking individuals redress violations the stat- joined utes can be in an action undertaken the state seeking similarly violations, redress for the same resort legislature. must had to the intent Kollasch v. Adamany, 563, 104 (1981). 2d 313 Wis. 47 N.W.2d construing “in statute, court it
In
must consider
context, subject
scope, history,
matter
relation to its
Kollasch,
at
object
accomplished.
2d
. .”
to be
Wis.
563;
Employment Relation
Wis.
Comm.,
Berns v. Wis.
252, 265,
(1980).
2d
thorizes denies state to ings party However, clear from defendant. what is legislature provide to the statutes is that the intended damaged persons who had been as remedies those deceptive practices. trade It the result of fraudulent and legislature intended, that the when the state is also clear brought enjoin prohibited practices, an action to giving only trial limit in- court should not itself junctive also what relief but should determine losses attempt have been suffered individuals and to fashion injured persons. for those with such a relief Consistent language purpose would a secs. construction (d) allowing 100.18(11) 100.20(6) as state to party a name as defendant the same who brought they individuals, if had an could name. action, underlying conclude that these statutes We requires a which allows construction of statutes Savings joined to be in this action. as appeals
The court of concluded that this construction language statutes’ would lead of the to the “unreasonable recovery allowing against an result” of be had as- signee recovery pos- would not be when such otherwise appeals support position, the court of sible. In of this dealing 403.305, 1979-80, referred to sec a section Stats. rights course, in due then with the of a holder noted bring that, allow “to an action an state meaningless.” assignee 403.305, Stats., would render sec. 7). (Slip opinion iii., However, the contracts at fn. negotiable involved not instruments11 and thus here are not be holder in due course.12 could assignee Further, contracts, 403.104, 1979-80. See sec. Stats. 403.302, sec. 1979-80. See *9 subject took the contracts to all and defenses of claims buyers. pool First was aware of this. Each contract con- following (as required by tained the notice was federal law) “Any :13 holder contract is consumer credit subject to all claims and defenses which the could debtor against goods assert seller of or services obtained pursuant proceeds Thus, hereto or with the hereof.” contracts, pool purchasers under the terms of the Savings. against could maintained have actions Consequently, allowing the claims state to assert these would not lead to the “unreasonable result” the court of appeals feared. appeals’ allowing recovery
The court of assertion that against assignee nullify an would sec. 403.305 is with- protect out foundation. in due The rules which a holder assignee protect a course cannot be invoked to assignee clearly subject contract wherein that made buyer may claims defenses the assert. That is the statutes, may presently recovery case here. Under the against Savings. be had though argues complete also that even a
remedy presence cannot be fashioned without its case, defendant in this it still cannot be made complaint “claim” because the states no 802.02(1), (1979-80), it. Under sec. plain must contain “a statement of short and identifying the . . claim, . series of transactions showing . . . out of which the claim that the arises pleader is entitled to relief. ...” Citing requirements. complaint here meets these
Dery 1959) (2nd v. its Wyer, 265 F.2d Cir. for correctly definition, appeals pointed court of out requirement home (1982). 16 CFR sec. A similar 433.2 improvement AG, Chap. Wis. contracts is found in sec. Adm. Code. *10 only “aggregate operative
a “claim” need set out the giving right (Slip facts rise to a enforceable in courts.” opinion clearly 1.) at i. fn. Here the sets out necessary the facts in- to show violations the statutes Further, allega- complaint’s volved in action. assignee, tions show that without the inclusion of the Savings, party, complete had. relief cannot be require The statute does not more.
Although commencing the state’s initial in injunctive action under re- these statutes is to obtain lief, language it is clear from the of the statutes that legislature did not intend to limit circuit court only granting injunctive Rather, to trial relief. court given injured par- is a broad authorization to make the Supreme ties whole. As the United stated States Court Co., Porter (1946), in v. Warner 328 U.S. once equitable jurisdiction invoked, of a court is comprehensiveness equitable jurisdiction “the not is of this a clear to be denied or limited in the absence of legislative and valid command. a in so Unless statute inference, many words, necessary inescapable and jurisdiction equity, scope restricts the in court’s the full jurisdiction recognized applied.” to be and is limita- Because the statutes here involved contain no equity jurisdiction, tion on the trial court’s exercise of its scope of we conclude that trial court the full has equitable it relief for remedies available to to fashion parties injured practices as the result of the acts question involved in this action. The thus becomes may join party equity whether a court of granted. party without whom full relief cannot be We conclude the court do so. question previously
This court has not considered the attempting equity may, to fash- of whether a court of in remedy party, ion a for the of one fraudulent conduct join directly another not involved but fraud necessary provide complete one which is Re- relief. Michigan Supreme Eugene Black, tired Court Justice F. presenting recently equity jurisprudence, his on views anything justifies equity’s concluded that existence “[i]f supreme ability prevent it is that remedy fraud all its characteristics, nefarious matter no how contrived sought speak, Fraud, equity’s to be effected. so dish.”14 exclusive *11 equity jurisdiction
Once
court
a
of
a mat
obtains
over
ter,
jurisdictions
it will
in
exercise its
to do
effort
complete justice
parties
Ful
between the
to the action.
lerton
Torborg,
485,
Lumber
478,
Co. v.
274 Wis.
80
(1957) ;
Improvement
N.W.2d 461
Tri-State Home
Co. v.
Mansavage,
648, 660,
(1977).
77 Wis. 2d
The Love case a which in involved bank-bailee held its possession, collateral, (Wil- as a securities of defendant son) allegedly engaged had who in fraudulent activities. Michigan The Court could be determined that bank joined though party of as defendant no cause even action it. to stated was done order was This provide complete allow trial to the court to relief parties.
Although Savings distinguish seeks have us present Love from the is not case because First Equity Jurisprudence, Black, A Resurrection Brief for of (1981). 60 Mich. B.J. bailee, argument point. misses the The bank joined party
Love it was was as a defendant because necessary party complete justice was to include it as a if principle That as Unless to be done. holds here well. justice complete this action, is included in cannot be done. Savings may joined properly
We conclude in this action. Such conclusion is underlying purpose both statutes consistent with of involved herein and the trial court’s exercise its jurisdiction. equity
By appeals re- court Court. —Decision court further versed and cause remanded trial opinion. proceedings not inconsistent with this STEINMETZ, (dissenting). majority J. has mis- interpreted misapplied in a and the law result-oriented which chaos doubt area effort will cause years protection consumer law for come. The recovery by consumers, deep pocket to is to find a enable swimming pools. purchasers inwho this case are equity, majority fails to of courts of but writes distinguish equity dictionary definition of between the doing body jurispru- justice fairness *12 differing theory origin, from and methods dence its equity in Wis- law. no the common There are courts jurisdiction consin, only to circuit courts which have 801.01, legal equitable award or remedies. Sec. equity a mis- refer as a court of is To to this trial court supply power an nomer. It a circuit court with the to is remedy. .legal equitable well as as Wilson, Mich. majority’s on Love v. reliance 327, (1956) held that misplaced. Love is N.W.2d necessary against cause a defendant was not a of action long presence in party it as “his in order name a as to as requisite neces- and case is as a defendant shown as sary equity’s to providing ultimate full —that complete and adjustment relief with due in one suit of rights growing and parties duties of all of the named out of or subject connected with the matter of the suit.” Id. at remedy 330-31. The decision did not that a state may granted be though for party, or that even no cause of action was stated. Love,
In the named possession, bank had in its as col- certain lateral, Ralph Wilson, partner securities of a co-partnership, Associates, D.M. Love which was seek- ing naming bank, dissolution. The as- cording Michigan alleged: court, to the equitable due form that “[I]n control of such securi- necessary ties and Wilson collateral is order that com- plete duly relief in the case be decreed. As to such discovery prays Wilson collateral the bill and it asks preservation by injunction partnership of all and such individually-owned assets until decree is That is entered. enough party, equity to bank, hold the in court until permitted accomplish purposes is jurisdiction to of her invoked .preservation discovery first, next, dis- — position according clear the Any maxim to last. other rule would way pendente for release of a stakeholder with possible part resultant the in- loss of the whole subject volved matter.” 329-30. Id. at being cry analogous These facts are a far from Michigan quoted applied instant case. court “ ‘ ny person court’s rule follows: [A] amade defendant who has or claims an interest adverse person Any made a plaintiff. at time be to the proper party presence necessary complete is his if ” Michigan the cause.’ at 331. determination Id. Michigan requires (1945). sec. 3 Court Rule No. existing party named or adverse interest for a to be necessary complete presence determina- is his in- is not adverse to an tion of the cause. necessary against Viking, junction nor it a *13 injunction a determination of the cause of whether an against Viking. should issue The state seek no other remedy against Savings action, it is First since only injunction against limited to a violator which accompanied requested be relief. 100.18(11) (d), 1979, Secs. cited Stats. by majority, only the authorize to commence the state enjoin respective an action to the violation of statutes. department justice “may Both statutes state that the commence an action in in the the circuit court name of by permanent injunction temporary state to restrain gen- attorney That is the extent of the [violations].” general sought eral’s authorization. The no in- junctive against Savings. By majority’s relief First the alleged own “The that certain of admission, Savings, engaged defendants, but not had deceptive practices swimming pools.” in the sale of Therefore, (Emphasis added.) (Supra 483.) at the stat- by give attorney general utes their own no terms right party. to name First though majority party, then that a even reasons against it, may no cause trial exists be named forging authority remedy. court for remedy proper part the trial court to form is 110.18(11) (d), 100.20(6). secs. How- only authority ever, trial court refers against parties sought A relief action. whom is party may possible not named for relief unless the plaintiff possesses against party. a cause of action against The state had no of action cause my only remedy. In and has made it a to create opinion, reasoning such is inverted. legislature
The intent of in the considered sections clear, sculptured is and it not that of desire out majority. can Individual consumers obtain relief Savings pursuant 100.18(11) (b)2 and to secs.
495 100.20(5), 1979, AG, and ch. sec. Wis. Adm. Code. These sections make no mention of the state proper party. may only prevent The state seek to deceptive practices. future or further majority When the writes: with such “Consistent language would be a construction of the in secs. 100.18(11) (d) 100.20(6) allowing the state to name as a defendant in a the same individuals, they brought who if action, had could name,” engaging thinking it is in wishful and artful legislature’s describing (Supra not 488.) intent. at maintaining The distinction between who is the action significant can purposes discovery. When the plaintiff, party. consumer is the it is treated aas When plaintiff, the state is the party, the consumer is not a only state, but a witness for the and is therefore not subject discovery techniques. to all myriad potential
I problems foresee a ma- jority’s obtained, decision. If are funds is the state to become the trustee and administrator of funds those alleged behalf on of all known or unknown victims of practices? By majority’s unfair defendants’ own statement, Viking swimming pools sold 106 but not does say all deceptive. those sales were claimed to be Of total, pool purchases Savings. 44 were financed buyers being protected by only Are all state those only alleging deceptive practices known or those now or buyers represent paid in the future? Will the state who through lending cash or financed institutions than Savings? majority tangled opinion creates web. 260-61, Sharp, 254,
This court in Estate
63
2dWis.
clearly
authority
spelled
parens patriae. generally: Christenson, The See State power Attorney General, 1970 Wis. L. Rev. 298. Such legislature. specifically granted must the law, act.” Unless granted by power prosecute specific action is general powerless the office added.) omitted.) (Emphasis (Footnote parens Sharp not declared that the state is to act as patriae. case, takes not Nonetheless, the state on only role, big The all- but also the role brother. controlling dominating government protective, has being year early George,1 come a in 1983 and not accomplished by court fiat. appeals
I court of but dissent and would affirm the for the reasons stated. I am G. authorized to state Justice William joins this dissent.
Callow George novel, Reference Orwell’s 1984.