### COURT OF APPEALS DECISION DATED AND FILED August 31, 2021

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP60 Cir. Ct. No. 2019CV106 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

C ITY OF W AUSAU , P LAINTIFF - R ESPONDENT ,

V .
D ANIELLE R AE F ISCHER , D EFENDANT - A PPELLANT .

APPEAL from an order of the circuit court for Marathon County:
GREGORY J. STRASSER , Judge. Affirmed

. ¶ 1 STARK, P.J. 1 Danielle Fischer appeals an order denying her W IS

. S TAT

. § 806.07 motion for relief from a prior circuit court order . F or the reasons explained below, w e conclude the circuit court did not erroneously exercise its

1 This appeal is decided by one judge pursuant to W IS

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. § 752.31(2) (2019

- 20). All references to the Wisconsin Statutes are to the 2019

- 20 version unless otherwise noted.No. 2020AP60

2 discretion by denying Fischer’s § 806.07 motion

. We also reject Fischer’s argument that she was improperly forced to pay for an unnecessary hearing transcript , as she has not shown that she properly preserved that issue for appeal

. W e therefore affirm.

BACKGROUND
¶ 2 Fischer was cited for first

- offense op erating a motor vehicle while intoxicated (OWI) , c ontrary to W IS

. S TAT

. § 346.63(1)(a), as adopted by the City of Wausau Municipal Code

. See W AUSAU , W IS ., C ODE § 10.01.010 (2021). She

was also issued a n otice of intent to revoke her o perating p rivilege under W IS

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. § 343.305(9)(a) for refusing to submit to an evidentiary chemical test of her blood upon request by a law enforcement officer. Fischer timely requested a refusal hearing , and proceedings regarding both the OWI citation and the refusal were assigned a single case number in the City o f Wausau Municipal Court.
¶ 3 Both the refusal hearing and a trial on the OWI citation were ultimately scheduled to take place on January 16, 2019

. However , at the beginning of the January 16 hearing, Fischer entered a guilty plea to the OWI
citation

. She then moved to dismiss the refusal charge based on her plea to the associated OWI charge, pursuant to State v. Brooks , 113 Wis. 2d 347, 335 N.W.2d
354 (1983)

. 2 The municipal court concluded that before it could exercise its

2 In State v. Brooks , 113 Wis. 2d 347, 348

- 4 9, 335 N.W.2d 354 (1983), our supreme court determined that a circuit court had properly exercised its discretion by dismissing a refusal charge against a defendant who had already ple d guilty to the underlying OWI charge. The court reasoned that Wisconsin’s implied consent law “i s designed to induce persons to submit to an alcohol test to e xpedite securing evidence to determine whether or not a suspected person is intoxicated to a degree warranting ” an OWI charge, but if the suspected person subsequently pleads guilty to an OWI charge, “ there no longer re mains a need for penalties for failur e to submit to a test which has become unnecessary in the particular case .” Id.No. 2020AP60

3 discretion un der Brooks , it needed to “have some facts” regarding Fischer’s alleged refusal

. Fisc her then stipulated that there was a proper basis for the stop of her vehicle and for her arrest, and that the officer read her the “ Informing the
A ccused” form

. Accordin g to Fischer, the only disputed issue was “whether or
not this actually was a refusal.”

¶ 4 After hearing evidence on that issue and arguments by the parties , the municipal court found that Fischer had improperly refused to submit to a
chemical test of her blood

. However, based on Brooks , t he court stated that it would exercise its discretion to dismiss the refusal charge

. As penalties for the OWI violation, the court imposed a $911 fine , revoked Fischer’s operating privilege for seven months, and ordered the installation of an ignition interlock device (IID) on her vehicle for a period of one year

. The court expressly stated that it was imposing the IID requirement “at the OWI level,” rather than as a penalty for the refusal charge, w hich the court had dismissed.
¶ 5 Fischer subsequently filed a notice of appeal asking the Marathon County Circuit C ourt to conduct a “transcript review” of the municipal court’s
decision

. See W IS

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. § 800.14(4)

- (5). Ten days later, Fischer filed a motion asking the circuit court to delete the IID requirement from the municipal court’s judgment

. Fischer argued that under W IS

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. § 343.301, the municipal court could order an IID only if Fischer: (1) had a blood alc ohol concentration ( BAC ) above 0.15; (2) had one or more prior OWI conviction s ; or (3) improperly refused to submit to a blood test and was “convicted of refusal under [ W IS

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. §] 343.305.” Fischer noted that the State had not presented any evidence as to her BAC, and that it was undisputed she did not have any prior OWI convictions

. Fischer further observed that the municipal court had exercised its discretion toNo. 2020AP60

4 dismiss the refusal charge under Brooks . Fischer therefore asserted that the court
had no basis to order an IID.
¶ 6 On June 17, 2019, the circuit court issued a written decision and order denying Fischer’s motion to delete the IID requirement from the municipal court’s judgment and dismissing her appeal. The court agreed with Fischer that the City of Wausau had not proved either that her BAC was over 0.15 at the time of driving or that she had any prior OWI convictions

. The court concluded, however, that W IS

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. § 343.301(1g)(a)1. requir ed the municipal co urt to order
installation of an IID if it found that Fischer had improperly refused to take a test
under W IS

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. § 343.305, regardless of whether the municipal court ultimately
exercised its discretion to dismiss the refusal charge

. The court then revi ewed the transcript of the refusal hearing and determined the evidence supported the municipal court’s finding that Fischer had improperly refused to take a test under § 343.305. The court therefore concluded that the municipal court had properly imposed the IID requirement , even though it had exercised its discretion to dismiss
the refusal charge

. ¶ 7 Fischer moved for reconsideration, arguing a mere finding of an improper refusal was a n in sufficient basis to order a n IID in a case where the underlying refusal charge was dismissed and, as a result, the defendant’s operating privilege was not revoked under W IS

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. § 343.305(10)

. She relied on § 343.305(1 0m), which states that the “ requirements and procedures for
install ation of an ign ition interlock device under s. 343.301 apply when an operating privilege is revoked under sub. (10). ”
¶ 8 The circuit court denied Fischer’s reconsideration motion in an August 14 , 2019 order

. The court concluded that after the municipal court foundNo. 2020AP60

5 that Fischer had improperly refused a blood test, the municipal court was required to revoke her operating privilege under W IS

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. § 343.305(10)

. Consequently, the court held that the municipal court had erroneously exercised its discretion by failing to revoke Fischer’s operating privilege under that subsection and by instead dismissing the refusal charge

. 3 The court noted, however, that the municipal court had made all of the findings necessary to revok e Fischer’s operating privilege under § 343.305(10). The court therefore reasoned that “while the municipal court did not follow the statutory revocation mandate set forth above, the resulting IID order it did impose was in compliance with the same .” The court concluded:

In the end, the municipal court muddied the waters by wrongly exercising discretion in failing to link its finding on the refusal action to its IID order. However, the confusion was caused by an assertion that the municipal court could h old a refusal hearing, find against the defendant, and then still dismiss the refusal action. The statute plainly dictates otherwise

.
¶ 9 Three months later, on November 14, 2019, Fischer filed a motion
for relief from the circuit court’s prior order under W IS

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. § 806.07

. Fischer took issue with the circuit court’s conclusion in its order denying reconside ration that the municipal court had improperly dismissed the refusal charge

. She a sserted the circuit court “seem[ed] to have forg otten that it did not have jurisd iction over the refusal anymore. ” Specifically , Fischer asserted that under Town of Menasha
v. Bastian , 178 Wis. 2d 191, 503 N.W.2d 382 (Ct. App. 1993) , the court had no jurisdiction to address the dismissal of the refusal charge because the City had not

3 Although the municipal court revoked Fischer’s operating privilege for a period of seven months as a sanction for her OWI violation, it is undisputed that the court did not revoke her operating privilege under W IS

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. § 343.305(10). Had the revocation occurred under that subsection, the municipal court would have been required to revoke Fischer’s operating privilege for a period of one year. See § 343.305(10)(b)2.No. 2020AP60

6 appealed the dismissal , and the court’s “decision to readdress [the] dis missal” was therefore “void.” Fischer’s motion did not specifically cite any paragraph or paragraphs of § 806.07(1) under which she was seeking relief.
¶ 10 The circuit court denied Fischer’s W IS

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. § 806.07 motion in a
l etter dated November 21 , 2019. The court noted that the motion was not filed
until five months after the court had entered its June 17, 2019 final order denying Fischer’s motion to delete the IID requ irement

. The court also noted that Fischer’s motion did not cite any “specific basis” for granting relief under § 806.07. The court explained:

As best as the court can determine, the motion is based upon an assertion that the court dismissed a refusal charge since the motion states, “However, the Court seems to have forgotten that it did not have jurisdiction over the refusal anymore ...” The court struggles to understand what this means, or how it applies, because it never entered an order related to a refusal charge

.

The court ultimately stated that it was denying Fischer’s motion because s he had failed to establish “how

... § 806.07 applies and why it took five months to bring the motion.”

¶ 11 Fischer filed a notice of appeal from the circuit court’ s November 21, 2019 decision denying her W IS

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. § 806.07 motion

. The City moved to dismiss the appeal for lack of jurisdiction , arguing that Fischer’s notice of appeal was not timely filed with respect to the circuit court’s June 17, 2019
final order, its August 14, 2019 order denying r econsideration, or its
November 21, 2019 order denying relief under § 806.07

. ¶ 12 In an order dated February 26, 2020, w e agreed with the City that Fischer’s appeal was untimely as to the June 17 and August 14 orders. WeNo. 2020AP60

7 concluded, however, that the notice of appeal sought review only of t he
November 21 order denying relief under W IS

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. § 806.07. We further
concluded that the notice of appeal was timely as to that order because it was filed within ninety days after the order was entered. We therefore held that the notice of appeal “provides this court with jurisdiction to consider whether the circuit court properly determined there were no grounds t o reopen the matter
under

... § 806.07.” We cautioned, however, that the scope of the appeal was “limited to that issue” and did not include issues decided by the court’s June 17 and August 14 orders.

DISCUSSION
¶ 13 Wh ether to grant relief under W IS

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. § 806.07 is within the circuit court’s discretion, and we will not reverse unless the court erroneo usly
exercised its discretion. See Sukala v. Heritage Mut. Ins. Co. , 2005 WI 83, ¶8, 282 Wis. 2d 46, 698 N.W.2d 610. A court properly exercises its discretion when it employs a process of reasoning based on the facts of record and reaches a
conclusion based on the application of the correct legal standard. Id. We will not reverse a discretionary determination “if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court’s decision.” Id. (citation omitted). Because the exercise of discretion is so essential to the circuit court’ s functioning, we generally look for reas ons to sustain discretionary
determinations

. Id.

¶ 14 W ISCONSIN S TAT

. § 806.07(1) sets forth eight grounds on which a
circ u it court may relieve a party from a prior judgment , order, or stipulation. On appeal, Fischer argues that the circuit court should have granted her relief under § 806.07(1)(d) , which permits a court to grant relief when a judgment “ is void .”No. 2020AP60

8 Alternatively, Fischer contends the court should have granted her relief under § 806.07(1)(h)

— a “catch

- all” provision t hat applie s when there are “any other reasons justifying relief.” See Sukala , 282 Wis. 2d 46, ¶9. In response, the City asserts Fischer cannot now claim that the court erroneously exercised its discretion by failing to grant her relief under either para. (1)(d) or (1)(h) be cause her motion
did not specifically seek relief under either of those paragraphs

. ¶ 15 The City is correct that Fischer’s W IS

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. § 806.07 motion did not specifically cite either para. (1)(d) or (1)(h). Fischer argues, however, that the allegations in her motion were sufficient to put the circuit court on notice that she was seeking relief under para. (1)(d). As noted above, Fischer’s motion asserted that in its order denying reconsideration, the circuit court had erred by concluding that the municipal court had improperly dismissed the refusal charge

. Fischer asserted that, under Bastian , the circuit court had no jurisdiction to address the municipal court’s decision to dismiss the refusal charge becaus e the City had not
appea led that decision

. Fischer therefore asserted that the circuit court’s “decision to readdress [the] dismissal” was “void .” We agree with Fischer that t hese allegations should have reasonably informed the circuit court that she was seeking
relief under para. (1)(d), even though she did not specifically cite that paragraph.
¶ 16 Nevertheless, we ultimately agree with the City that the circuit court did not erroneously exercise its discretion by declining to grant Fischer relief
under W IS

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. § 806.07(1)(d). Fischer relies on Bastian , in which the
defendant was cited for both OWI and operating with a prohibited alcohol concentration (P AC )

. Bastian , 178 Wis. 2d at 193. On appeal from Bastian’s
convict ion on the PAC charge, we considered whether the circuit court had

“ subject matter jurisdiction ” over the that charge, even though : (1) a municipal
court had previously dismissed the PAC charge after trial without a finding ofNo. 2020AP60

9 guilt ; (2) on appeal to the circuit court , Bastian had requested a new trial only on the OWI charge ; and (3) the T own of Menasha did not request a new trial on the
P AC charge. Id. We concluded that under those circumstances, the circuit court lacked subjec t matter jurisdiction over the P AC charge because the party aggrieved by the dismissal of the PAC charge

— i.e., the town

—had failed to appeal that decision

. Id. at 196.
¶ 17 Fischer argues that, under Bastian , the circuit court lacked subject matter jurisdiction to a ddress the municipal court’s decision to dismiss the refusal charge because the City did not appeal that decision

. “A judgment is void if the court rendering it lacked subject matter jurisdiction .” State ex rel. R.G. v.
W.M.B. , 159 Wis. 2d 662, 666, 465 N.W.2d 221 (Ct. App. 1990). Accordingly, Fischer asserts that the circuit court’s decision that the m unicipal court improperly dismissed the refusal charge is void, and she is therefore entitled to relief from the court’s order under W IS

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. § 806.07(1 )(d).
¶ 18 Fischer’s a rgument fails because , since Bastian was decided, our
supreme court has reiterated that in Wisconsin, “no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever.” Village of Trempealeau v. Mikrut , 2004 WI 79, ¶8, 273 Wis. 2d 76, 681 N.W.2d 190 (citation omitted). Although a circuit court’s failure to comply with statutory mandates for invoking its subject matter jurisdiction may result i n the court losing competency to exerci se its subject matter jurisdiction in a particular case, a defect of competency is not jurisdictional “and does not result in a void judgment.” Id. , ¶¶9, 34. Thus , assuming without deciding that absent an appeal by the City, the circuit court could not consider whether the municipal court properly dismissed Fischer’s refusal charge , we nevertheless reject Fischer’s assertion s that the circuit court lacked subject m atter jurisdiction to address that issue , and that its orderNo. 2020AP60

10 stating the dismissal was improper is therefore void. As such, the court did not erroneously exercise its discretion by declining to grant Fischer relief under W IS

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. § 806.07(1)(d).
¶ 19 Fischer has also failed to show that she was entitled to relief under
W IS

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. § 806.07(1)(h). “A litigant must raise an issue with sufficient prominence such that the [circuit] court understands that it is being called upon to
make a rulin g .” Bishop v. City of Burlington , 2001 WI App 154, ¶8, 246 Wis. 2d 879, 631 N.W.2d 656

. As noted above, Fischer did not specifically cite
p ara. (1)(h) in her motion for relief from the circuit court’s prior order. In addition, none of the allegations in her motion would have reasonably informed the court that she was seeking relief under that paragraph. Under these circumstances, Fischer cannot now complain that the court erred by failing to grant her relief under para. (1)(h).
¶ 20 Moreo ver, Fischer has failed to develop any argument

— either in the circuit court or on appeal

— as to why W IS

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. § 806.07(1)(h) is applicable in
this case. A court appropriately grants relief under § 806.07(1)(h) “when extraordinary circumstances are present justifying relief in the interest of justice.” Miller v. Hanover Ins. Co. , 2010 WI 75, ¶35, 326 Wis. 2d 640, 785 N.W.2d 493.
E xtraordinary circumstances exist where the sanctity of the f inal judgment is outweighed by “ the incessant command of the court’ s conscience that justice be done in light of all the facts .” Id. (citation and emphasis omitted ). The party seeking relief bears the burden to prove that extraordinary circumstances are present. Id. , ¶34. Fischer’s § 806.07 motion did not identify any extraordinary circumstances warranting relief from the circuit court’s prior order , nor has she identified such extraordinary circumstances on appeal.No. 2020AP60

11 ¶ 21 We also observe that a motion for relief under W IS

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. § 806.07(1)(h) must be mad e “within a reasonable time.” See § 806.07(2). The circuit court implicitly determined that Fischer’s § 806.07 motion was not filed within a reasonable time, as Fischer had failed to show “why it took five months to bring the motion.” On appeal, Fischer asserts that her motion was timely because it was filed within one year of the circuit court’s underlying decision, but she cites no legal authority in support of that proposition

. Section 806.07(2) provides that a motion filed under para. (1)(a) or (1) (c) must b e filed “ not more than one year after the judgment was entered or the order or stipulation was made .” However,

t he legislature’s decision to require that motions under paras

. (1)(a) and (1) (c) be filed within one year of the underlying decision does not compel a conclusion that a motion under para. (1)(h) is necessarily timely if filed within one year. Fischer does not explain why, under the circumstances of this case, the circuit court erroneously exercised its discretion by determining that he r § 806.07 motion was untimely. 4

¶ 22 Finally, Fischer argues that she should not have been required to pay for the preparation of a transcript of the refusal hearing. Fischer has not shown, however, that she properly preserved that issue for appeal. Issues raised for the first time on appeal a re generally deemed forfeited. Tatera v. FMC Corp. , 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810

. “ The burden is upon the party alleging error to establish by reference to the record that an error was

4 Our discussion of the “reasonable time” requirement in W IS

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. § 806.07(2) applies only to the extent that Fischer sou ght relief under § 806.07(1)(h). As the City correctly concedes, the “reasonable time” requirement does not apply to m otions to vacate void judgments filed under § 806.07(1)(d). See Village of Trempealeau v. Mikrut , 2004 WI 79, ¶34, 27 3 Wis. 2d 76, 681 N.W.2d 190. We have already concluded for other reasons, however, that the circuit court did not erroneously exercise its discretion by declining to grant Fischer relief under § 806.07(1)(d).No. 2020AP60

12 specifically called to th e attention of the [circuit] court.” Terpstra v. Soiltest, Inc. , 63 Wis. 2d 585, 594, 218 N.W.2d 129 (1974)

. ¶ 23 Here, while Fischer asserts that she “ did raise an objection to the transcript being created when the transcript was only for the refusal which was dismissed and not appealed , ” she does not cite any portion of the appellate record in support of that assertion. In addition , we clarified in our February 26, 2020
order that the scope of this appeal was limited to whether the circuit court properly
denied Fischer’s W IS

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. § 806.07 motion. Fischer’s § 806.07 motion did not
raise any argument regarding improper payment of transcript fees

. We therefore
decline to address th at issue.

By the Court.

— Order affirmed

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)( b)4.