                                                          2018 WI 48

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:               2015AP829
COMPLETE TITLE:         Penny L. Springer,
                                  Plaintiff-Appellant,
                             v.
                        Nohl Electric Products Corporation, General
                        Refractories Company, Dana Sealing Products,
                        LLC, John Crane, Inc., Union Carbide
                        Corporation, Rockbestos Surprenant Cable
                        Corporation a/k/a Rockbestos Products Corp and
                        RSCC Wire & Cable, Inc., Garlock Sealing
                        Technologies LLC, Anchor Packing Company, Inc.,
                        Gaskets, Inc., Cincinnati Valve Company, Leslie
                        Controls, Inc. and Trac Regulator Company, Inc.,
                                  Defendants,
                        Powers Holdings, Inc. and Fire Brick Engineers
                        Company, Inc.,
                                  Defendants-Respondents-Petitioners,
                        Secure Horizons by United Health Care Insurance
                        Company,
                                  Subrogated Defendant.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 370 Wis. 2d 787, 882 N.W.2d 870
                                       (2016 – Unpublished)

OPINION FILED:          May 15, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 2, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Jefferson
   JUDGE:               William F. Hue

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, J., dissents, joined by A.W.
                        BRADLEY, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:

       For        the   defendants-respondents-petitioners,   there    were
briefs by George S. Peek, Eric D. Carlson, Benjamin A. Sparks,
and   Crivello   Carlson,   S.C.,   Milwaukee.   There   was   an   oral
argument by Eric D. Carlson.


      For the plaintiff-appellant, there was a brief by Kathryn
A. Keppel and Gimbel, Reilly, Guerin & Brown LLP, Milwaukee,
with whom on the brief was Ronald G. Tays and Tays Law Office,
Milwaukee.   There was an oral argument by Ronald G. Tays.




                                    2
                                                                  2018 WI 48
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.   2015AP829
(L.C. No.   2010CV622)

STATE OF WISCONSIN                      :            IN SUPREME COURT

Penny L. Springer,

            Plaintiff-Appellant,

      v.

Nohl Electric Products Corporation, General
Refractories Company, Dana Sealing Products,
LLC, John Crane, Inc., Union Carbide
Corporation, Rockbestos Surprenant Cable
Corporation a/k/a Rockbestos Products Corp and
RSCC Wire & Cable, Inc., Garlock Sealing
Technologies LLC, Anchor Packing Company, Inc.,
                                                               FILED
Gaskets, Inc., Cincinnati Valve Company, Leslie
Controls, Inc. and Trac Regulator Company,                MAY 15, 2018
Inc.,
                                                             Sheila T. Reiff
                                                          Clerk of Supreme Court
            Defendants,

Powers Holdings, Inc. and Fire Brick Engineers
Company, Inc.,

            Defendants-Respondents-Petitioners,

Secure Horizons by United Health Care Insurance
Company,

            Subrogated Defendant.




      REVIEW of a decision of the Court of Appeals.            Reversed.
                                                                           No.         2015AP829



       ¶1        DANIEL    KELLY,    J.       When     one    company      purchases           the

assets of another, our law normally does not make the former

responsible for the latter's liabilities.                       There are exceptions

to   that        rule,    however,     such    as     when     the   parties           use    the

transaction         to    fraudulently        escape    responsibility            for        those

liabilities.         Notwithstanding the great age of this common-law

exception to successor non-liability, we have had scant occasion

to provide guidance on how to recognize such transactions.                                     We

take the opportunity to do so today.1                       Specifically, we conclude

that       the   Wisconsin    Uniform     Fraudulent         Transfer       Act       does    not

govern the "fraudulent transaction" exception to the rule of

successor non-liability, and so we reverse the court of appeals.

                                     I.   BACKGROUND

       ¶2        Penny     Springer's         husband        died     in         2007        from

mesothelioma.            She believes his exposure to asbestos-containing

products during his employment between 1963 and 1969 contributed

to his sickness and eventual death.                    She sued several companies,

including         Fire     Brick     Engineers        Company,       Inc.        and     Powers
Holdings,         Inc.,     alleging      they       were     negligent          in     mining,

merchandising,              manufacturing,              supplying,               installing,




       1
       This is a review of an unpublished decision of the court
of appeals, Springer v. Nohl Elec. Prods. Corp., No. 2015AP829,
unpublished slip op. (Wis. Ct. App. June 23, 2016) (per curiam).


                                               2
                                                                                   No.     2015AP829



distributing,          or    selling       the    asbestos       products          to    which    Mr.

Springer was exposed.2

       ¶3       The complaint identified Powers Holdings, Inc. as the

successor        to    Fire       Brick    Engineers           Company,       Inc.        But     the

relevant        history      of    these     companies         actually       goes       back    much

further.        In the 1940s, Harry J. Schofield formed a company that

came to be known as Fire Brick Engineers Company.                                    The business

manufactured          and    distributed,         inter        alia,    asbestos-containing

refractory and foundry supplies.                          Several successors to this

company contained some variation of "Fire Brick Engineers" in

their names, so we will refer to the original as "FBE1."                                           In

1983,       a    group      of     investors          (including        attorneys         who     had

previously        provided         legal     representation            to     FBE1)      formed     a

company that would come to be known as Fire Brick Engineers

Company,        Inc.     ("FBE2")      for       the    purpose        of    acquiring       FBE1's

assets.         FBE2 accepted some, but not all, of FBE1's liabilities.

Several years later, FBE2 merged with Curtis Industries, Inc.,

and adopted the name Powers Holdings, Inc.                                   Powers Holdings,
Inc.       currently        does    business           under     the        name     "Fire      Brick

Engineers Company," but to avoid confusion, we will refer to it

only as "Powers."             And because FBE2 was merged into Curtis, and

therefore no longer exists as a separate entity, our references

to "Powers" will include FBE2 unless we indicate otherwise.

       2
       Mrs. Springer filed her complaint on February 8, 2010, and
an amended complaint four days later.        Unless the context
requires otherwise, when we refer to the "complaint," we will be
referring to the amended complaint.


                                                  3
                                                                              No.      2015AP829



       ¶4         The record does not reflect that either FBE2 or Powers

has        ever     manufactured       or         distributed             asbestos-containing

products.          FBE2 acquired FBE1 via an asset purchase agreement

(the       "Agreement"),       which   is     a    common       method       of    acquiring   a

business          while    limiting    exposure          to    its    liabilities.3         The

Agreement provided that the only liabilities FBE2 would assume

in the transaction would be a promissory note, trade accounts-

payable, open inventory purchase orders, loans against certain

life       insurance       policies,    and       FBE1's        lease      obligations     with

respect       to     two    properties.            The        Agreement      disclaimed     the

assumption of any other liabilities:                      "Buyer [FBE2] does not, by

this Agreement or otherwise, assume or agree to pay or perform

any other liabilities or obligations of Seller [FBE1] of any

kind, whether or not related to the Subjects' Business, all of

which liabilities and obligations remain the sole responsibility

of Seller."

       ¶5         Therefore,      Powers'           answer           to      the     complaint

affirmatively asserted that Mrs. Springer had sued the wrong
company:           "[T]he Plaintiff has brought an action against the

wrong entity insofar as Powers Holdings, Inc. is not liable for

the torts of its predecessor corporations based upon corporate

       3
       The "rule of non-liability for asset acquisitions is
frequently the reason why parties choose that option in
acquiring a business, as opposed to a merger or stock
acquisition,   in  which   the   predecessor's  obligations   and
liabilities continue in the surviving entity."           Columbia
Propane, L.P. v. Wis. Gas Co., 2003 WI 38, ¶23, 261 Wis. 2d 70,
661 N.W.2d 776 (internal marks and quoted source omitted).


                                              4
                                                                   No.      2015AP829



successor liability defenses."                 Neither the original nor the

amended     complaint      named   FBE1   as    a     party.      Nothing      in   the

pleadings recognized that FBE2 had been created long after the

period of time during which Mrs. Springer says her husband was

exposed     to     asbestos    products,       or     that     Powers    has    never

commercially dealt with asbestos-containing products.                       And the

pleadings asserted no facts or legal theories by which FBE2 or

Powers could be held responsible for FBE1's liabilities.

      ¶6      Powers   eventually     moved     for     summary    judgment.        It

argued, in part, that "there is no basis to impose liability on

Powers Holding, Inc.          as a successor to Fire Brick Engineers

Company [FBE1]."        Mrs. Springer responded that Powers is liable

to her as successor to FBE1 under the "mere continuation" and

"de   facto      merger"   exceptions     to    the    successor    non-liability

rule.      The circuit court suspended summary judgment proceedings

so the parties could engage in further discovery.                        Powers then

amended its motion, in response to which Mrs. Springer asserted,

for the first time, that the "fraudulent transaction" exception
to the successor non-liability rule should apply.                        The circuit

court, the Honorable William F. Hue presiding, granted Powers'

motion and dismissed FBE2 and Powers from the case.

      ¶7      Mrs. Springer appealed.          Her primary argument was that

undisputed evidence proved the Agreement between FBE1 and FBE2

had the purpose of fraudulently escaping liability for FBE1's

obligations. She also argued that the circuit court erred in

granting summary judgment because there was a genuine factual
dispute as to whether the "mere continuation" and "de facto
                                          5
                                                                                  No.        2015AP829



merger"          exceptions         to    the     rule       of    successor          non-liability

applied to Powers.                   The court of appeals addressed only the

"fraudulent transaction" exception.                            Although it noted that Mrs.

Springer did not adequately explain how a court is supposed to

determine whether there has been such a fraudulent transaction,

it     concluded            that     "the       question          of        whether     a    transfer

transaction was entered into fraudulently must be answered in

the context of Wisconsin's Uniform Fraudulent Transfer Act [Wis.

Stat.      ch.     242]."          Springer       v.     Nohl     Elec.       Prods.    Corp.,      No.

2015AP829, unpublished slip op., ¶16 (Wis. Ct. App. June 23,

2016)      (per       curiam).           So    the     court      of    appeals       reversed      and

remanded the cause to the circuit court for a trial in which the

jury would apply the "badges of fraud" contained in Wis. Stat.

§ 242.04 (2015-16)4 to determine whether Powers should be held

responsible           for    the     liabilities          of      its       predecessor      company,

FBE1.

       ¶8        We    granted        Powers'        petition           for    review,       and    now

reverse the court of appeals.
                                   II.    STANDARD OF REVIEW

       ¶9        We    review       the       disposition         of    a    motion    for    summary

judgment         de   novo,        applying      the     same      methodology         the    circuit

courts apply.               Green Spring Farms v. Kersten, 136 Wis. 2d 304,

315,       401    N.W.2d 816         (1987);         Borek      Cranberry        Marsh,      Inc.   v.

Jackson Cty., 2010 WI 95, ¶11, 328 Wis. 2d 613, 785 N.W.2d 615

       4
       All references to the Wisconsin Statutes are to the 2015-
16 version unless otherwise specified.


                                                     6
                                                                              No.      2015AP829



("We   review       the    grant   of     a       motion       for    summary   judgment       de

novo . . . .").

       ¶10    "The first step of that methodology requires the court

to examine the pleadings to determine whether a claim for relief

has been stated."           Green Spring Farms, 136 Wis. 2d at 315.                           "In

testing      the    sufficiency      of       a       complaint,       we    take    all    facts

pleaded by plaintiff[] and all inferences which can reasonably

be derived from those facts as true."                                Id. at 317.           And we

liberally     construe       pleadings         "with       a    view   toward       substantial

justice to the parties."                Id. (citing Wis. Stat. § 802.02(6)).

"The complaint should be dismissed as legally insufficient only

if it is quite clear that under no circumstances can plaintiff[]

recover."         Id.

       ¶11    Under the second step of this methodology, "[i]f a

claim for relief has been stated, the inquiry then shifts to

whether      any    factual    issues         exist."            Id.   at     315.         Summary

judgment      is    appropriate     only          "if    the     pleadings,     depositions,

answers      to    interrogatories,           and      admissions       on    file,    together
with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law."                     Wis. Stat. § 802.08(2); see also

Columbia Propane, L.P. v. Wis. Gas Co., 2003 WI 38, ¶11, 261

Wis. 2d 70,        661     N.W.2d 776         (citing          and   applying       Wis.    Stat.

§ 802.08(2)).

                                   III.       DISCUSSION

       ¶12    The       question   before         us     is     a    narrow   one,     to    wit,
whether the Wisconsin Uniform Fraudulent Transfer Act governs
                                                  7
                                                                           No.      2015AP829



the "fraudulent transaction" exception to the rule of successor

non-liability.             After    resolving       that    question,       we    will   then

determine     whether          further       proceedings       in        this     case     are

necessary.

                  A.       The Rule of Successor Non-Liability

      ¶13   In        determining         whether     the    fraudulent          transaction

exception to the rule of successor non-liability should apply in

this case, the court of appeals relied on the Wisconsin Uniform

Fraudulent Transfer Act (Wis. Stat. ch. 242 (the "WUFTA")) for

the   standard        by    which    to    identify    fraud       in    the    transfer   of

assets from FBE1 to FBE2.                 We hold today that the WUFTA does not

control the analysis of the fraudulent transaction exception.

Our opinion will first address the basic principles undergirding

the rule of successor non-liability.                       Then, we will explain why

the WUFTA does not control the disposition of this case.

                 1.    The Basics of Successor Non-Liability

      ¶14   Our       common       law    provides    that     "a       corporation      which

purchases the assets of another corporation does not succeed to
the liabilities of the selling corporation."                              Fish v. Amsted

Indus.,     Inc.,       126    Wis. 2d 293,          298,    376    N.W.2d 820        (1985)

(quoting Leannais v. Cincinnati, Inc., 565 F.2d 437, 439 (7th

Cir. 1977)).           In Wisconsin, this rule dates back to the late

nineteenth century.            See Wright v. Milwaukee & St. Paul Ry. Co.,

25 Wis. 46, 52 (1869) (stating that a corporation does not "by

selling a portion of its property, or even the whole of it,

impose upon the purchaser any liability for its general debts").


                                              8
                                                                 No.      2015AP829



       ¶15   There are very practical justifications for this rule.

It "protect[s] a bona fide purchaser from liabilities caused by

a predecessor corporation of which the bona fide purchaser was

unaware at the time of acquisition."                 Columbia Propane, L.P.,

261    Wis. 2d 70,    ¶23      (quoting        Eva     M.   Fromm,     Allocating

Environmental Liabilities in Acquisitions, 22 J. Corp. L. 429,

441    (1997)).      Without    such       a   rule,    assets    would    become

unmarketable:

       If the liabilities always went with the assets, it
       would be difficult to sell assets because the
       purchaser would not know what he was getting.       He
       might be "buying" a lawsuit the expected cost of which
       exceeded the value of the asset purchased, yet it
       would be too late for him to back out of the sale or
       renegotiate the price.
Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1424 (7th

Cir. 1993) (applying Illinois law).             This is no less true in the

context of products liability cases, such as this one.                     Here's

why:

       [T]he successor corporation did not create the risk
       nor did it directly profit from the predecessor's sale
       of the defective product; it did not solicit the use
       of the defective product nor make any representations
       as to its safety; nor is it able to enhance the safety
       of a product that is already on the market[.]
Fish, 126 Wis. 2d at 307 (citing Bernard v. Kee Mfg. Co., 409

So. 2d 1047, 1050 (Fla. 1982); Domine v. Fulton Iron Works, 395

N.E.2d 19, 23 (Ill. App. Ct. 1979); Jones v. Johnson Mach. &




                                       9
                                                                               No.         2015AP829



Press Co. of Elkhart, Ind., 320 N.W.2d 481, 484 (Neb. 1982);

Ostrowski v. Hydra-Tool Corp., 479 A.2d 126, 127 (Vt. 1984)).5

     ¶16      But    this        rule     of     successor          non-liability          is     not

absolute; there are four well-recognized circumstances in which

it does not apply:

     (1) when the purchasing corporation expressly or
     impliedly agreed to assume the selling corporation's
     liability; (2) when the transaction amounts to a
     consolidation or merger of the purchaser and seller
     corporations; (3) when the purchaser corporation is
     merely a continuation of the seller corporation; or
     (4) when the transaction is entered into fraudulently
     to escape liability for such obligations.
Fish, 126 Wis. 2d at 298 (quoting Leannais, 565 F.2d at 439).

     ¶17      We are interested here in the fourth exception.                                    Even

though it is over a century old, it has received only sporadic

attention.            "There            are     few         cases      under         the        fraud

exception, . . . partly because creditors prefer to cast these

cases    as     suits       to     set         aside    a     fraudulent         conveyance."

Chaveriat,      11    F.3d       at 1425.             The    scarcity     is     particularly

evident when the claim sounds in tort.                          See, e.g., Restatement

(Third) of Torts:           Products Liability § 12 cmt. e (Am. Law Inst.

1998)    (stating      that       the     fraudulent          transfer     exception             "has

rarely   been       used    to    impose        successor      liability        for        products


     5
       The rule applies regardless of the legal form of the
businesses involved:     "[This] rule and its exceptions are
applicable, irrespective of whether a prior organization was a
corporation or a different form of business organization." Tift
v. Forage King Indus., Inc., 108 Wis. 2d 72, 77, 322 N.W.2d 14
(1982).


                                                 10
                                                                      No.        2015AP829



liability       claims");     Timothy     J.     Murphy,     Comment,        A    Policy

Analysis    of     a   Successor        Corporation's        Liability       for       its

Predecessor's Defective Products When the Successor Has Acquired

the Predecessor's Assets for Cash, 71 Marq. L. Rev. 815, 819

(1988) (stating that "the fraudulent transaction exception is

usually     not     successfully         invoked      by     products        liability

plaintiffs").

    ¶18     We    learn     from   the    few       available    cases       that      the

justification for the fraudulent transfer exception is that such

transactions can leave aggrieved parties with no remedy:

    This is clearest in the case where after the sale of
    all its assets a corporate seller distributes the
    proceeds   of  the   sale  to   the  shareholders and
    dissolves.    If the purchaser is not liable, the
    transaction will have externalized the costs of the
    seller's acts that gave rise to liability.
Chavariat, 11 F.3d at 1425; see also Ed Peters Jewelry Co. v. C

& J Jewelry Co., 124 F.3d 252, 266 (1st Cir. 1997) (applying

Rhode Island law) ("But since a rigid nonassumption rule can be

bent to evade valid claims, the successor liability doctrine was

devised    to    safeguard     disadvantaged        creditors     of    a    divesting

corporation in four circumstances.").

    ¶19     The     bare     desire     for     a    remedy,     however,         is    an

insufficient rationale for imposing liability on an entity that

had no relationship with the culpable company until after the

risk was created.           Therefore, the mechanism by which liability

transfers from the predecessor to the successor must reflect

culpability:       "To impose liability on the successor corporation
[under    the    fraudulent    transfer        exception],      the    law   in     every

                                          11
                                                                               No.         2015AP829



jurisdiction . . . requires                   a        finding        that     the        corporate

transfer of assets 'is for the fraudulent purpose of escaping

liability.'"         Raytech Corp. v. White, 54 F.3d 187, 192 (3d Cir.

1995) (applying Oregon law) (quoting 15 William M. Fletcher,

Fletcher Cyclopedia of the Law of Private Corporations § 7122

at 232);6 see also United States ex rel. Bunk v. Gov't Logistics

N.V.,       842    F.3d 261,       276    (4th          Cir.     2016)       ("The    fraudulent

transaction         theory       turns     on          the     intention      underlying        the

transfer of assets to [the successor], i.e., whether it was made

with       an     actual       intention          to     hinder,        delay,       or    defraud

creditors.") (applying Virginia law); Cashman v. Hitchcock, 293

F. 958, 962 (1st Cir. 1923) ("When a corporation receives in

good       faith    the        transfer       of        all     the     assets       of    another

corporation, and pays the selling corporation full consideration

therefor,         the    transfer        is       not        fraudulent,"        unless       there

is "proof         that    it    was   made         with       the     intention      to    defraud

creditors, and the grantee had knowledge of such intention.").

       ¶20      To help us understand the circumstances that would be
sufficient to engage the fraudulent transaction exception to the

rule       of   successor      non-liability,             we    turn    to    our    common     law

experience with fraudulent conveyances.




       6
       "Under   Fletcher's   articulation of   the  exception,
transferring corporate assets for the purpose, or with the
intention, of escaping liability is, by definition, a transfer
of assets with fraudulent purpose." Raytech Corp. v. White, 54
F.3d 187, 192 (3d Cir. 1995).


                                                  12
                                                                      No.         2015AP829


                   2.    Common-Law Fraudulent Conveyances
      ¶21    The       law   of     fraudulent      conveyances       originated        in

England     to    protect       against    debtors'      creative   efforts       to   put

assets beyond the reach of creditors:

      Until the seventeenth century, England had certain
      sanctuaries into which the King's writ could not
      enter.   A sanctuary was not merely the interior of a
      church, but certain precincts defined by custom or
      royal grant.   Debtors could take sanctuary in one of
      these precincts, live in relative comfort, and be
      immune from execution by their creditors.      It was
      thought that debtors usually removed themselves to one
      of these precincts only after selling their property
      to friends and relatives for a nominal sum with the
      tacit understanding that the debtors would reclaim
      their property after their creditors gave up or
      compromised their claims.
Douglas G. Baird & Thomas H. Jackson, Fraudulent Conveyance Law

and Its Proper Domain, 38 Vand. L. Rev. 829, 829 (1985).

      ¶22    In    response        to    this    perceived    problem,       Parliament

adopted what has come to be known as the Statute of 13 Elizabeth

in 1571, which voided any conveyance that a debtor "devised and

contrived of malice, fraud, covin, collusion, or guile to the

end purpose and intent to delay, hinder, or defraud creditors

and   others      of    their     just    and   lawful    actions."         See   An   Act

Against Fraudulent Deeds, Gifts, and Alienations, 13 Eliz. c. 5,




                                            13
                                                          No.     2015AP829



§ 1   (1571)   (translated   into   modern   English).7     The   eminent

jurist, Lord Edward Coke, then set about identifying the methods

by which a plaintiff might prove that the conveyance was made

for a fraudulent purpose.      He listed some in the famous Twyne's

Case:

      1st. That this gift had the signs and marks of fraud,
      because the gift is general, without exception of his
      apparel, or any thing of necessity; for it is commonly
      said, quod dolus versatur in generalibus.[8]

      2nd. The donor continued in possession, and used them
      as his own; and by reason thereof he traded and
      trafficked with others, and defrauded and deceived
      them.


      7
       In the original English, the text said that a conveyance
was void if a debtor "devysed & contryved of Malyce Fraude
Covyne Collusion or Guyle, to Thend Purpose and Intent to delaye
hynder or defraude Creditors and others of theyr juste and
lawfull Actions."    An Acte agaynst fraudulent Deedes Gyftes
Alienations, &c., 13 Eliz. c. 5, § 1 (1571).        "Covyne" (or
"covin," as we now spell it) is "[a] secret conspiracy or
agreement between two or more persons to injure or defraud
another."   Black's Law Dictionary 446 (Bryan A. Garner, ed.,
10th ed. 2014); see also The Oxford English Dictionary 1079
(John A. Simpson & Edmund S.C. Weiner eds., 2d ed. 1989)
(identifying "covyne" as an alternative form of "covin").

     Moreover, although the 1571 Parliament designed this
statute to be penal in nature, the 1623 Parliament gave it a
civil application.    Bruce A. Markell, Toward True and Plain
Dealing: A Theory of Fraudulent Transfers Involving Unreasonably
Small Capital, 21 Ind. L. Rev. 469, 473 (1988) (citing 13 Eliz.
c. 5, § 1 (1571) and 21 Jac. 1, c. 19, § 7 (1623)).
      8
       "Dolosus versatur in generalibus" means "[a] person
intending to deceive deals in general terms."    Henry Campbell
Black, A Law Dictionary Containing Definitions of the Terms and
Phrases of American and English Jurisprudence, Ancient and
Modern 387 (2d ed. 1910).


                                    14
                                                                           No.         2015AP829


       3rd. It was made in secret, et dona clandestina sunt
       semper suspiciosa.[9]

       4th. It was made pending the writ.

       5th. Here was a trust between the parties, for the
       donor possessed all, and used them as his proper
       goods, and fraud is always apparelled and clad with a
       trust, and a trust is the cover of fraud.

       6th. The deed contains, that the gift                               was made
       honestly, truly, and bona fide:             et                      clausulae
                                               [10]
       inconsuet' semper inducunt suspicionem.
Twyne's Case (1607) 76 Eng. Rep. 809, 812-14; 3 Co. Rep. 80b,

80b-81a       (Star     Chamber)       (footnotes        omitted).               The    courts

developed       and   refined     the    means      of    proving         fraud    over     the

ensuing       centuries.          See     generally           Robert       J.     Rosenberg,

Intercorporate Guaranties and the Law of Fraudulent Conveyances:

Lender Beware, 125 U. Pa. L. Rev. 235, 248 n.33 (1976).

       ¶23     We adopted this ancient history as our own from the

very       beginning:      "[T]he      principles        of    the     English         statutes

amending       the    common     law    and    existing        at    the    time       of   our

Revolution, suitable to our condition and in harmony with our

constitution and statutes, are a part of the common law of this

country."       Harrigan v. Gilchrist, 121 Wis. 127, 219, 99 N.W. 909

(1904);      accord     Glinka    v.    Bank   of   Vt.       (In    re    Kelton      Motors,

       9
       "Dona   clandestina  sunt   semper    suspiciosa"   means
"[c]landestine gifts are always suspicious."    Lorna Marie, The
Judges and Lawyers' Companion, Latin Maxims and Phrases 107
(2018).
       10
        "Clausulae inconsuetae semper inducunt suspicionem" means
"[u]nusual clauses always excite suspicion." 1 Stewart Rapalje &
Robert L. Lawrence, A Dictionary of American and English Law 217
(1888).


                                              15
                                                                        No.      2015AP829



Inc.), 130 B.R. 170, 177-78 (Bankr. D. Vt. 1991) ("The Statute

of 13 Elizabeth has since served as the model for common law and

modern American fraudulent conveyance laws.").                      Indeed, at least

one court has observed that this common law background is the

basis for the fraudulent transfer exception to the rule against

successor non-liability.                 Chaveriat, 11 F.3d at 1426 ("It has

been    suggested,       indeed,         that     the     fraud   exception      to     the

nonliability of successors is merely an application of the law

of     fraudulent     conveyances.").                  Consequently,     we    may     find

reasonable guidance from that body of law.

       ¶24    American courts have continued their English cousins'

tradition of inquiring into the types of circumstances that may

indicate a fraudulent intent behind an asset conveyance.                             One of

the most common indicia of fraudulent intent is the inadequate

consideration paid for the acquired assets.                         See, e.g., Welco

Indus., Inc. v. Applied Cos., 617 N.E.2d 1129, 1134 (Ohio 1993)

("Indicia of fraud include inadequate consideration and lack of

good faith."); Eagle Pac. Ins. Co. v. Christensen Motor Yacht
Corp., 959 P.2d 1052, 1056 (Wash. 1998) (en banc) ("Adequate

consideration for        a transfer of assets between a buying and

selling      corporation      is    an    important       element   when      determining

whether to impose successor liability.").

       ¶25    The    unusual        nature        of     business      activities       and

arrangements surrounding a transaction have also assisted courts

in identifying fraud.              The Fourth Circuit Court of Appeals, in

determining         whether        the    fraudulent         transaction       exception
applied,      inquired    into      factors       such     as   (1) "[i]nadequacy        of
                                             16
                                                                          No.     2015AP829



consideration," (2) "[t]ransactions that are different from the

usual method of transacting business,"                      (3) "[t]ransactions in

anticipation      of     suit    or   execution,"         and    (4) "[t]ransactions

through which the debtor retains benefits."                            Bunk, 842 F.3d

at 277.        The Kansas Supreme Court, in Avery v. Safeway Cab,

Transfer & Storage Co., concluded that transferring all assets

to a new entity was a fraud because (1) "[t]here was not a

formal    sale    of    the     assets . . . at       a     fixed      price,"    because

(2) "[n]o formal arrangements were made to care for the other

debts of the [predecessor]," and because (3) "the negotiators

deliberately disabled it from any possible further exercise of

its corporate functions."             80 P.2d 1099, 1101 (Kan. 1938).

    ¶26        Long    experience     has   taught     us    that      these     types   of

circumstances         frequently      accompany       fraudulent           transactions.

However,    as    distillations        of   experience,         they    should     not   be

understood as definitive, nor comprehensive.                     The purpose of the

fraudulent transaction inquiry is to discover the actual intent

of those who engineered the transfer of assets from the old
company to the new——this is not a question of negligence or

strict     liability.           The   finder     of   fact       must      consider      all

circumstances         tending    to   illuminate      whether       the    transfer      was

entered into for the fraudulent purpose of escaping liability

for the transferor's obligations.

          3.     The Wisconsin Uniform Fraudulent Transfer Act
    ¶27        The WUFTA exists independently from this common law
history, and fulfills a purpose quite separate from that of the


                                            17
                                                                              No.         2015AP829



fraudulent transaction exception to the rule of successor non-

liability.       The Act is an important, but limited, tool.                              Whereas

the   WUFTA      is   designed      to    assist         creditors      in    collecting         on

claims that may be frustrated by recent asset transfers, the

fraudulent       transaction       exception          is   a    doctrine       that       prevents

successor companies from avoiding obligations incurred by their

predecessors.         This difference in purpose is reflected in two of

the Act's specifics.               First, the statute of limitations for

claims under the Act can be as short as one year after learning

the asset was transferred.                     Wis. Stat. § 242.09; Wis. Stat.

§ 893.425.         As    such,    the     Act      is    incapable      of     ensuring       that

liability continues to reside in the proper entity, especially

when the injuries are latent and discovered years after the

corporation is known to have restructured.                               And second, the

remedies    available        under       the    Act      center    on    the      fraudulently

conveyed asset, rather than the successor company.                                        The Act

allows     the     creditor       to     avoid       the    transfer         to     the    extent

necessary     to      satisfy     its     claim         (Wis.   Stat.    § 242.07(1)(a)),
attach      the         asset     in      the           hands     of     the         transferee

(§ 242.07(1)(b)),          obtain       an     injunction         or    appointment         of    a

receiver to prevent loss of the asset (§ 242.07(1)(c)), or levy

execution on the asset or its proceeds in the hands of the

transferee       (§ 242.07(2)).              So,      whereas     the    Act        focuses      on

recovering the asset or its value, the fraudulent transaction

exception        focuses     on    the       business          entity    itself       and      its

liability for its predecessor's obligations.


                                                18
                                                                                   No.      2015AP829



       ¶28     Because         the     WUFTA       is    asset-focused,             it     does    not

account for the legislative policies and priorities embodied in

our    business-related               statutes.            It       does     not     address       the

limitation of liability afforded to such business entities as

corporations            (Wis.        Stat.     ch. 180),            and    limited         liability

companies         (Wis.       Stat.    ch. 183).              The    fraudulent          transaction

exception to the rule of successor non-liability, on the other

hand, developed as an organic response to corporate law.                                           See

George       W.     Kuney,       A     Taxonomy         and     Evaluation          of     Successor

Liability, 6 Fla. St. U. Bus. L. Rev. 9, 12 (2007) ("[S]uccessor

liability law is a product of the rise of corporate law in the

last    half       of    the    19th     century         and    early      part     of     the    20th

century.          In fact, it appears to have developed because of, and

in reaction to, the rise of corporate law.").

       ¶29     We       agree    with        the    United          States    Supreme        Court's

observation         that       "the    failure      of    the       statute    to        speak    to   a

matter as fundamental as the liability implications of corporate

ownership demands application of the rule that '[i]n order to
abrogate a common-law principle, the statute must speak directly

to the question addressed by the common law.'"                                United States v.

Bestfoods,         524    U.S. 51,       63    (1998)         (quoting       United       States       v.

Texas, 507 U.S. 529, 534 (1993)).                          Therefore, we conclude that

chapter       242       has     not     supplanted            the    common-law           fraudulent

transaction exception to the rule of successor non-liability.

                                 B.     Dismissal of Powers

       ¶30     We must now determine whether there is anything left
for    the    court       of    appeals       or    circuit         court     to    resolve       with
                                                   19
                                                                         No.     2015AP829



respect    to     Powers.        The    court    of    appeals    said    that     "[Mrs.]

Springer     filed       the   present     action       against    the     respondents,

seeking    to     hold    them    liable       under    the   theory      of   successor

liability       for   damages     stemming       from   the   death      of    Springer's

husband."        Springer, No. 2015AP829, unpublished slip op., ¶1.

That is certainly what Mrs. Springer argued in the court of

appeals, but it does not describe the case she pursued in the

circuit court.           What Mrs. Springer actually did in the circuit

court     was    "alleg[e]       that    the     respondents      are     liable    under

theories of negligence and strict liability."                      Id., ¶4.        Because

she pled the latter and not the former, Powers was properly

dismissed from the case upon its motion for summary judgment.

     ¶31        Sometime between the joining of issue in this case and

resolution of the motion for summary judgment, the nature of

Mrs. Springer's claim against Powers changed substantially.                           The

issue the parties joined was whether Powers culpably engaged in

activity that resulted in Mr. Springer's exposure to asbestos.

By the time Powers moved for summary judgment, however, it had
become apparent that this claim could not succeed because FBE2

had not come into existence until many years after the period of

Mr. Springer's alleged exposure, and Powers had never engaged in

commerce with asbestos-containing products.11




     11
       Our review of the record confirms that it contains no
evidence that FBE2 or Powers had ever engaged in commerce with
asbestos-containing products.


                                            20
                                                               No.        2015AP829



    ¶32    Consequently, in response to the motion for summary

judgment, Mrs. Springer introduced an entirely new reason for

holding   Powers   liable.       She    tacitly     acknowledged        that    the

relevant timeline made it impossible for FBE2 or Powers to have

been part of the causal chain between the asbestos-containing

products and her husband's death.           So she instead argued Powers

should be liable to her because (1) FBE1 had transferred all of

its assets to Powers with the fraudulent purpose of escaping any

future    asbestos-related      liability,     (2) Powers         was     a    mere

continuation of FBE1, or (3) Powers was the product of a de

facto merger with FBE1.

    ¶33    However, Mrs. Springer never made a claim out of any

of these arguments; they were never more than a response to

Powers'   motion   for    summary      judgment.        Her   pleadings        never

mentioned FBE1, either explicitly or implicitly.               In neither her

original nor her amended complaint are there allegations from

which one could infer that she sought to hold Powers responsible

for FBE1's torts.        She certainly had opportunity and reason to
amend her complaint to make such allegations——Powers' answer put

her on notice that she had named the wrong company:                           "[T]he

Plaintiff has brought an action against the wrong entity insofar

as Powers Holdings, Inc. is not liable for the torts of its

predecessor     corporations        based    upon       corporate       successor

liability defenses."

    ¶34    We   review    the   disposition   of    a    motion     for   summary

judgment using the same methodology as the circuit court in the
first instance.     Green Spring Farms, 136 Wis. 2d at 315.                      We
                                       21
                                                                        No.      2015AP829



begin by "examin[ing] the pleadings to determine whether a claim

for relief has been stated."                Id.    When Powers filed its motion,

it was seeking judgment on Mrs. Springer's claim that it was

causally responsible for her husband's exposure to asbestos.                            We

will    assume,    without        deciding,       that    Mrs.     Springer    adequately

alleged that Powers was in the causal chain of events that led

to    her    husband's     death,     and    pled       the   necessary     elements   of

negligence and strict product liability.                        The next step requires

us     to     review       "the     pleadings,           depositions,       answers     to

interrogatories,         and      admissions       on     file,    together    with    the

affidavits, if any," to determine whether we can conclude "that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law."                             Wis.

Stat. § 802.08(2).             Summary judgment for FBE2 and Powers was

appropriate because the record shows the parties do not dispute

that FBE2 and Powers could not have been in the causal chain of

events inasmuch as FBE2 did not exist until after Mr. Springer's

alleged exposure to asbestos, and Powers has never bought or
sold asbestos-containing products.

       ¶35    That leaves the question of whether Mrs. Springer has

a    viable    claim   against      Powers        based    on     successor    liability.

This inquiry requires that we return to an examination of the

pleadings in search of allegations adequate to make out a claim

of successor liability against FBE2 and Powers.                               To state a

claim       upon   which     relief    may        be     granted,     the     plaintiff's

allegations must be informed by the theory of liability:                               "In
sum, Twombly makes clear the sufficiency of a complaint depends
                                             22
                                                                         No.      2015AP829



on substantive law that underlies the claim made because it is

the   substantive         law   that     drives       what    facts      must   be    pled.

Plaintiffs must allege facts that plausibly suggest they are

entitled to relief."            Data Key Partners v. Permira Advisers LLC,

2014 WI 86, ¶31, 356 Wis. 2d 665, 849 N.W.2d 693.

      ¶36   A claim that a company is liable for the torts of a

predecessor company is not the same as a claim of liability for

the     torts    themselves.           Tort        claims    comprise     the     familiar

elements of duty, breach, causation, and damage.                         A claim that a

successor       company    bears   responsibility            for   the    torts      of   its

predecessor is entirely different.                    As a separate legal entity,

Powers enjoys the presumption that it is not liable for the

misdeeds of its predecessor, even when it has succeeded to all

of its assets.        See Fish, 126 Wis. 2d at 298 ("[A] corporation

which    purchases    the       assets    of       another    corporation       does      not

succeed to the liabilities of the selling corporation." (quoting

Leannais, 565 F.2d at 439)); Wright, 25 Wis. at 52 (stating that

a corporation does not "by selling a portion of its property, or
even the whole of it, impose upon the purchaser any liability

for its general debts").

      ¶37   A claim of successor liability, as distinct from a

claim based on the underlying tort, puts on the plaintiff the

burden of establishing one of the exceptions to the rule of non-




                                              23
                                                                    No.      2015AP829



liability.12       Because the substantive theory of liability drives

the facts a plaintiff must plead, see Data Key Partners, 356

Wis. 2d 665, ¶31, Mrs. Springer had the burden of alleging facts

sufficient to reveal that she was pursuing Powers not as the

tortfeasor     itself,    but   as   the    successor    to    the        tortfeasor.

Exceptions to the rule of successor non-liability focus almost

exclusively on the nature of the transaction by which the latter

obtained     the    former's    assets.        They     have        little    to   no

relationship       with   the    facts      supporting        the     tortfeasor's

liability.     Consequently, facts that are sufficient to support a

claim against the tortfeasor are unlikely to be sufficient to

support a claim of successor liability.13

     12
       State v. Big John, 146 Wis. 2d 741, 756, 432 N.W.2d 576
(1988) ("[O]ne who relies on an exception to a general rule or
statute has the burden of proving that the case falls within the
exception."); see also Call Center Techs., Inc. v. Grand
Adventures Tour & Travel Pub. Corp., 635 F.3d 48, 52 (2d Cir.
2011) ("Because the 'general rule' is that a purchaser of assets
does not assume the predecessor's liability, it follows that the
proponent of successor liability must offer proof that one of
the aforementioned exceptions to the general rule applies.");
Dayton v. Peck, Stow and Wilcox Co. (Pexto), 739 F.2d 690, 692
(1st Cir. 1984) (stating that the proponent of successor
liability has the burden of proof regarding facts bringing
defendants within one of the exceptions to successor non-
liability).
     13
       In Pennison v. Chicago, Milwaukee & St. Paul Railway Co.,
a successor liability case, we concluded the complaint failed to
state a claim against the successor because its allegations did
not make out a claim of successor liability.    See 93 Wis. 344,
346-347, 67 N.W. 702 (1896).     We noted:   "The remedy of the
plaintiff, if any, is against the Milwaukee & Northern Railroad
Company.   Upon the allegations of the complaint, he has none
against the defendant company [the successor]." Id. at 347.


                                       24
                                                                             No.        2015AP829



       ¶38    That is the case here.               Mrs. Springer says she did not

know about the existence of FBE1 until after Powers had moved

for summary judgment.            We are not persuaded this should make any

difference to our conclusion.                 Powers' answer put Mrs. Springer

on notice that FBE2 and Powers were not the tortfeasors she

claimed      they    were.      And    there       was    a    nearly      two-year      hiatus

between the original and amended motions for summary judgment——

the    specific      purpose     of    which       was    to       allow   for     additional

discovery into Powers' corporate history.                             Mrs. Springer had

ample opportunity to amend her complaint to assert that the

circumstances under which Powers succeeded to FBE1's assets were

such that they should make Powers liable pursuant to one of the

exceptions      to     the     rule    of     successor            non-liability.            The

complaint does not mention successor liability at all (except

cryptically as between FBE2 and Powers, which is not at issue

here).       Nor does it even acknowledge the existence of FBE1.                              It

necessarily         follows    that    the    complaint            alleges    nothing       with

respect to the asset transfer between FBE1 and its successors,
the very thing that could potentially make Powers liable.                                     So

Mrs.   Springer's       pleadings       are    silent         on    the    only     theory    of

liability she now advances in her case.

       ¶39    Therefore, her complaint fails to "allege facts that

plausibly      suggest        [she    is]    entitled         to    relief"        as   against

Powers.         See     Data     Key        Partners,         356     Wis. 2d 665,          ¶31.

Accordingly, we need not address the second step of the summary

judgment      methodology.           See    Green        Spring      Farms,      136    Wis. 2d
at 318 (noting that because a viable claim had not been stated,
                                              25
                                                                              No.      2015AP829



"we need not proceed to the next step of the summary judgment

methodology          under    section    802.08(2),          Stats.").              Powers   was

entitled to summary judgment.

    ¶40        The dissent believes it is improper for us to address

whether       Mrs.    Springer    adequately          pled    a    claim       of    successor

liability against Powers.                It worries that we raised this sua

sponte, without giving the parties an opportunity to address the

issue.     It says we "reached beyond the issues presented to [the

court]    to     decide       issues    not    presented          or    addressed       by   the

parties," and in doing so, surprised the parties as well as the

bench     and    bar.         Dissent,        ¶50.      These          are,    conceptually,

legitimate concerns, and the court must always be careful not to

gratuitously address issues unnecessary to the resolution of the

matter before us.            But that is not the case here.

    ¶41        As explained above, we are reviewing the disposition

of a motion for summary judgment.                     The bench and bar are aware

that in conducting such a review, the methodology we use here is

exactly what the circuit court uses.                    And the first step in that
methodology is "to examine the pleadings to determine whether a

claim for relief has been stated."                         Green Spring Farms, 136

Wis. 2d at 315.              The parties assist the court in making that

determination, but they cannot confine the court's analysis to

the arguments they choose to make.                         See Saenz v. Murphy, 162

Wis. 2d 54, 57 n.2, 469 N.W.2d 611 (1991) ("[T]his court is not

bound    by     the    issues    as    they     are    framed          by   the     parties."),

overruled       on    other    grounds    by       State     ex    rel.       Anderson-El     v.
Cooke, 2010 WI 40, ¶¶28-31, 234 Wis. 2d 626, 610 N.W.2d 821.                                  If
                                              26
                                                                 No.         2015AP829



the plaintiff's pleading is deficient as a matter of law, the

court    may    not   pretend   otherwise       simply   because      the    parties

failed to say so.         Naturally, the court must be quite certain of

its     footing    when    it   makes    a    conclusion    of     law      in     such

circumstances.        But when the deficiency is manifest, the court

must not shirk its duty.                Here, not only is the deficiency

manifest, it was conceded.              During oral arguments before this

court, counsel for Mrs. Springer acknowledged that "we did not

plead a common law fraud claim" against Powers.                       Our decision

should surprise no one.

                                IV.     CONCLUSION

      ¶42      The Wisconsin Uniform Fraudulent Transfer Act does not

apply to the "fraudulent transaction" exception to the rule of

successor      non-liability.         Because   we   conclude    that       FBE2    and

Powers were entitled to summary judgment, there is no need for a

remand.     The court of appeals is reversed.

      By    the   Court.—The    decision      of   the   court   of    appeals       is

reversed.




                                         27
                                                                                  No.    2015AP829.ssa


       ¶43    SHIRLEY       S.    ABRAHAMSON,             J.        (dissenting).              I    write

separately to make two points.

       ¶44    First, the majority confusingly muddles what does and

does    not   constitute           indicia       of       fraud       for    purposes          of     the

fraudulent       transfer         exception          to        the    general       rule       against

successor liability.               I conclude that courts may consult the

badges   of    fraud        listed      in     the    Wisconsin             Uniform       Fraudulent

Transfer Act (WUFTA) as indicative of a fraudulent transfer.

The unique facts of each case inform the court's search for

objective manifestations of fraud.

       ¶45    Second,       unlike       the     majority,            I     would       not    dismiss

Springer's     amended        complaint.              Neither         Fire       Brick     Engineers

Company,       Inc.        nor         Powers        Holding,             Inc.      (collectively

"defendants") has ever challenged the sufficiency of Springer's

amended complaint on the issue of successor liability.                                         Neither

the    circuit      court        nor    the     court          of    appeals       addressed          the

sufficiency      of       Springer's      amended          complaint         on     the       issue    of

successor liability.
       ¶46    The majority sua sponte raises and decides this issue

without affording Springer an opportunity to address the issue

or seek leave to amend her complaint.

       ¶47    The     majority          justifies          its       summary        dismissal          of

Springer's     amended           complaint       by       stating         that      Springer         "had

opportunity         and    reason       to     amend           her    complaint"          to       allege

successor liability.              Majority op., ¶33.

       ¶48    Springer's         adversaries,             however,        never      claimed         that
the    pleadings      were       deficient       after          being       put     on    notice       in

                                                 1
                                                                No.     2015AP829.ssa


Springer's     opposition    to   the   defendants'       motion      for   summary

judgment that she was pursuing a theory of successor liability.

Springer did not move to amend her complaint because there was

no adversarial challenge to the sufficiency of her pleadings

after   the    defendants    were    put    on   notice    of   her      theory   of

successor liability.        If the defendants believed that Springer

had not adequately pleaded her theory of successor liability,

they could have so argued.          They did not.

     ¶49      The issues of whether Springer's complaint adequately

pleads successor liability, and if not, whether Springer should

be granted leave to amend her complaint, are not issues properly

before this court.     The parties should be given notice the court

is   concerned     about    these    issues      and   should      be    given    an

opportunity to address these issues.

     ¶50      The court has once again reached beyond the issues

presented to it to decide issues not presented or addressed by

the parties.       The majority, again, surprises the parties, the

bench, and the bar.
     ¶51      The frequency and cavalier attitude with which this

court surprisingly decides an issue without providing parties

notice of the issue or an opportunity to address the issue is

troubling.      Due process requires (at a minimum) notice and an

opportunity to be heard.            Schroeder v. City of New York, 371

U.S. 208, 212 (1962); State v. Nelson, 2014 WI 70, ¶19, 355

Wis. 2d 722, 849 N.W.2d 317; Jensen v. Wis. Elections Bd., 2002

WI 13, ¶22, 249 Wis. 2d 706, 639 N.W.2d 537.



                                        2
                                                                No.    2015AP829.ssa


     ¶52     For    cases      decided   this     term   that   illustrate        the

court's growing bad habit of addressing issues without giving

parties notice and the opportunity to address the issue                           (in

violation    of     due   process),      see    Manitowoc   Company,       Inc.    v.

Lanning, 2018 WI 6, 379 Wis. 2d 189, 906 N.W.2d 130 (overruling

Heyde    Cos.,     Inc.   v.   Dove   Healthcare,    LLC,   2002      WI   131,   258

Wis. 2d 28, 654 N.W.2d 830, without providing parties notice or

opportunity to brief the issue of Heyde's continuing validity

and when doing so was unnecessary to the court's resolution of

the case); Sands v. Menard, 2017 WI 110, 379 Wis. 2d 1, 904

N.W.2d 789       (dismissing      unjust       enrichment   claim      for    being

inadequately       pleaded     despite   the    pleading    issue     never   being

raised at any point during litigation).1

     1
       In contrast with the cases described above in which the
court decides issues not addressed or argued by the parties,
State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904
N.W.2d 773, is an example of the court and the parties
essentially ignoring the issue presented and discussed in the
petition for review that induced the court to grant the petition
and addressing a new, different issue the parties present.

     In Reyes Fuerte, the petition for review phrased the issue
presented as follows:

     Now that criminal defense attorneys are obligated to
     advise    their    clients     about   the   immigration
     consequences of their pleas, Padilla v. Kentucky, 559
     U.S. 356 (2010), should the Wisconsin Supreme Court
     overturn its decision in State v. Douangmala, 2002 WI
     62, 253 Wis. 2d 173, 646 N.W.2d 1, and reinstate the
     harmless error rule to prohibit a defendant who was
     aware of the potential immigration consequences of his
     plea from being able to withdraw the plea just because
     the   circuit   court   failed   to  give  a   statutory
     immigration warning that complied with Wis. Stat.
     § 971.08(1)(c)?

                                                                       (continued)
                                           3
                                                             No.   2015AP829.ssa


    ¶53   I   am   concerned    that       this   court's   erosion    of     due

process rights will continue unabated until the people of this

state are left with nothing but a faint shadow of what once was

a constitutionally protected right.

    ¶54   I dissent.

    ¶55   I   am   authorized    to    state      that   Justice   ANN      WALSH

BRADLEY joins this dissent.




     Given the articulation of the issue presented for review in
Reyes Fuerte, one might expect that an analysis of Padilla would
be front and center in the briefs filed in this court.     It is
not. Padilla did not drive the parties' analyses.

     The court errs when it allows and condones parties'
phrasing an issue one way in the petition for review (thus
inducing the court to grant the petition) and then fundamentally
changing the issue presented when the case is actually being
litigated and argued in this court.     This practice allows the
parties and the court to violate court rules and is unfair to
litigants who attempt to follow the rules the court has adopted.

     United States Supreme Court Justice Antonin Scalia (joined
by Justice Elena Kagan) made this point as follows:

    I would not encourage future litigants to seek review
    premised on arguments they never plan to press, secure
    in the knowledge that once they find a toehold on this
    Court's docket, we will consider whatever workaday
    arguments they choose to present in their merits
    briefs.

City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1779
(2015) (Scalia, J., concurring in part, dissenting in part).


                                       4
    No.   2015AP829.ssa




1
