STATE OF WISCONSIN COURT OF APPEALS DISTRICT IV

RECEIVED
10-12-2010
CLERK OF COURT OF APPEALS OF WISCONSIN

Appeal No. 2010AP001909

Aurora Loan Services, LLC, Plaintiff-Respondent, vs. David J. Carlsen and Nancy L Carlsen, Defendants-Appellants.

APPEAL FROM THE DECISION OF THE CIRCUIT COURT OF ROCK COUNTY, JUDGE JAMES E. WELKER PRESIDING

APPELLANTS BRIEF

Reed J. Peterson Reed Peterson & Associates 7818 Big Sky Drive, Ste. 214 Madison, WI 53719 (608) 212-2322 State Bar No. 1022323 Attorney for Defendants-Appellants

TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF THE ISSUES STATEMENT ON ORAL ARGUMENT AND PUBLISHING STATEMENT OF THE CASE Procedural History Relevant Facts and Key Unanswered Questions ARGUMENT I. May a trier of fact enter a foreclosure judgment against a party when no documents have been admitted into evidence showing a security interest in the property the moving party seeks to foreclose on? May a trier of fact rely on documents not admitted into evidence in reaching its decision? ii 1 1 1 1 2 7 7

II.

III. May a witness testify about documents in a file that were given to the witness to prepare her testimony when the witness lacked personal knowledge about the records or how the records were prepared? CONCLUSION APPENDIX CERTIFICATION ON APPENDIX FORM AND LENGTH CERTIFICATION

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TABLE OF AUTHORITIES Cases Am. Fam. Mut. Ins. Co. v. American Girl, Inc., 268 Wis.2d 16, 673 N.W.2d 65 (2004) Berg-Zimmer & Associates, Inc. v. Central Manufacturing Corp., 148 Wis. 2d 341, 434 N.W.2d 834 (Ct. App. 1988) Lessor v. Wangelin, 221 Wis.2d 659, 586 N.W.2d 1(Ct. App., 1998) Ozaukee County v. Flessas, 140 Wis.2d 122, 409 N.W.2d 408(Ct. App. 1987) Palisades Collection LLC v. Kalal, No. 2009AP482 12 (Ct. App. 2/4/2010) Plesko v. Figgie Intl, 190 Wis.2d 764, 528 N.W.2d 446, 450 (Ct.App. 1994) State v. Mayo, 2007 WI 78, 734 N.W.2d 115 (2007) Statutes 706.01(4) 706.02(1) 805.17(2) 889.17 906.02 9 8 9 9 13 Page 10 14 9 9 12, 14 9 12

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STATEMENT OF THE ISSUES I. May a trier of fact enter a foreclosure judgment against a party when no documents have been admitted into evidence showing a security interest in the property the moving party seeks to foreclose on? Ruled: Yes. II. May a trial court rely on documents not admitted into evidence in reaching its decision? Ruled: Yes. III. May a witness testify about documents in a file that were given to the witness to prepare her testimony when the witness lacked personal knowledge about the records or how the records were prepared? Ruled: Yes, some testimony is admissible. STATEMENT ON ORAL ARGUMENT AND PUBLISHING Oral argument is not necessary because the trial consisted of one witness and the witness testimony was uncontroverted. Publication is appropriate

because of the number of foreclosure cases being filed. (According to CCAP, in Dane County there were 157 foreclosure filings in April 2010. By comparison, in Dane County there were 19 filings in April 2000, 35 filings in April 2005, and 116 filings in April 2008.) STATEMENT OF THE CASE Procedural History The plaintiff-respondent, Aurora Loan Services, LLC (Aurora), brought a foreclosure suit against the defendants-appellants, David J. Carlsen and Nancy L. Carlsen (the Carlsens), alleging Aurora was the holder of a note and mortgage
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signed by the Carlsens encumbering the Carlsens property. The Carlsens denied that Aurora was the holder of a note and mortgage on their property. A bench trial was held on June 9, 2010, in Rock County Circuit Court, the honorable James E. Welker presiding. Aurora called one witness, an employee of Aurora. The

witness ability to testify about documents allegedly in Auroras possession was hotly contested. Aurora did not move any documents into evidence and the court did not admit any documents into evidence. Despite glaring omissions in the witness testimony and the lack of any written evidence to support Auroras claims, the trial court entered a foreclosure judgment in favor of Aurora. The Carlsens filed a motion to reconsider, Aurora replied, but the court declined to consider the motion. The Carlsens appeal the trial courts ruling. Relevant Facts and Key Unanswered Questions A bench trial was held on June 9, 2010, in Rock County Circuit Court, Case No. 09 CV 2441, the Honorable James E. Welker presiding. Auroras only

witness was Kelly Conner (Conner), an employee of Aurora. [Unless otherwise noted, all references to the trial record herein are to R.28: Transcript of June 9, 2010, Court Trial (Trans.)] (Trans. p.3, ln.1-18.) Conners testimony concerned various documents in Auroras file. This was a short trial: the transcript from Conners testimony is 28 pages, much of it filled with objections and discussions regarding the admissibility of her testimony. The authenticity of documents in Conners possession and her ability to testify about them was strongly contested. The admissibility of documents in Auroras possession became a moot issue
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because Aurora did not offer any documents into evidence and the court did not admit any documents into evidence. (See R.17: Exhibit List.) The only evidence available to the trier of fact was Conners testimony. The following is a summary of Conners testimony, as well as critical questions that went unanswered: Note Conners Testimony: Conner testified there was a balloon note in

Auroras file. (Trans. p.5, ln.22-23.) The note regards property at 502 Newville Street, Edgerton, Wisconsin. (Trans. p. 21, ln.22-24.) The signatures on the balloon note do not appear to be photocopies, (Trans. p.7, ln.14-23) and are allegedly those of the Carlsens. (Trans. p.21, ln.15-19.) Conner had no

personal knowledge whether the Carlsens signed the note, (Trans. p.24, ln.20-23) but she was adamant the Carlsens were the holder of the note. (Trans. p.29, ln.1719; p. 30, ln.1-5.) Aurora services this loan. (Trans. p.15, ln.23-24.) Key Unanswered Questions: Did the Carlsens sign the note? If the

Carlsens signed the note, in what capacity did the Carlsens sign? What are the terms of the note? Who are the parties to the note? What are the parties

respective rights and obligations? Did the terms of the note provide that the note was secured by a mortgage? Mortgage Conners Testimony: Conner testified there was a mortgage in Auroras file. She testified it was the original recorded mortgage, but was unable to

produce a certified copy to admit into evidence. (Trans. p.8-10.) She testified that
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the mortgage was allegedly signed by the Carlsens, (Trans. p.21, ln. 25 to p.22, ln.2.), and the Carlsens were to make monthly payments on the mortgage and Aurora did not receive all payments required. (Trans. p.18, ln.9-16.) Key Unanswered Questions: Did the Carlsens sign the mortgage? If the Carlsens signed the mortgage, in what capacity did they sign? Were signatures notarized or authenticated? What are the terms of the mortgage? What is the legal description of the land that the mortgage encumbered? Was the mortgage

recorded? What debt does the mortgage secure? Is the mortgage related to the note in Auroras file? Does the mortgage provide the right to foreclose? Assignments of Mortgage Conners Testimony: Conner testified there were two assignments of

mortgage in Auroras file. (Trans. p.10, ln.20 to p.11, ln.7.) She stated one assignment of mortgage was signed and notarized on June 4, 2003. (Trans. p.24, ln.2-4.) She also testified this assignment of mortgage referenced a document registered with the Register of Deeds on June 10, 2003. (Trans. p.24, ln.5-8.) She could not explain how the signer was able to sign the document on June 4, 2003, in front of a notary and reference an event that occurred six days later. (Trans. p.24, ln.9-13.) Conner testified that Aurora possessed another assignment of

mortgage. (Trans. p.12, ln.6-7.) There was no additional testimony about this other assignment of mortgage. Key Unanswered Questions: What mortgage was assigned? What property interests were conveyed? Who were the parties to the assignment of mortgage?
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Were the assignments recorded? This document was allegedly signed in front of a notary, yet it references an event that occurred six days after it was signed and notarized is it authentic or a forgery? Loan Payment History Conners Testimony: Conner testified the file contained a loan payment history, which disclosed what payments were received, if funds were applied toward escrow or principal, and if they disbursed any escrow. (Trans. p.18, ln.19 to p.19, ln.3.) She also testified that the Carlsens were to make monthly payments on the mortgage and Aurora did not receive all payments required. (Trans. p.18, ln.9-16.) Key Unanswered Questions: Is the loan payment history related to the note Conner testified about? How much is owed on the loan? Does the mortgage contain a legal description of the property Aurora sought to foreclose on? Notice to the Customer Conners Testimony: Conner testified Auroras file contained a notice to the customer that they are currently in default. (Trans. p.19, ln. 14-16.) The notice in her file was a computer generated document and would not actually have been sent to the Carlsens. (Trans. p.25, ln.19-22) Aurora accelerated this note, which is Auroras common practice. (Trans. p.19, ln.17-21.) Aurora had received payments, but not the full amount, and there had not been a full curing of the default. (Trans. p.20, ln.1-7.) Aurora chose to pursue foreclosure action because

of the default. (Trans. p.20, ln.13-15.) She also testified that Aurora services loans for others. (Trans. p.24, ln.17-19.) Key Unanswered Questions: Who is the customer? Which note does this notice to the customer relate to? Did the note give Aurora the right to accelerate the note? What are the terms of the note that require the notice to be sent? What effect do partial payments have on the rights of the parties to the note? Was Aurora servicing this loan for the Carlsens since the Carlsens were the holder of the note? Did the Carlsens fail to make payments to Aurora as the servicer of the note that the Carlsens held? Is this a contractual dispute and not a mortgage foreclosure issue? Ownership of 502 Newville Street, Edgerton, Wisconsin Conners Testimony: Conner testified she did not have a deed to 502 Newville Street, Edgerton, Wisconsin showing the Carlsens owned the property. (Trans. p.26, ln.5-6.) She testified the mortgage showed the Carlsens owned the property at 502 Newville Street, Edgerton, Wisconsin. (Trans. p.26, ln.23-24.) When asked what property is addressed to the loan, Conner testified Auroras systems indicate [it] is 502 Newville Street, Edgerton, Wisconsin and Auroras systems indicate who is the holder of the note, which is David Carlsen and Nancy Carlsen. (Trans. p.29, ln.5-19.) When asked to clarify, she was adamant that the Carlsens were the holder of the note. (Trans. p.30, ln.1-5.)

Key Unanswered Questions: If the property that is the subject of the loan is 502 Newville Street, Edgerton, Wisconsin, and the holder of the note is the Carlsens, then why is Aurora bringing this lawsuit against the Carlsens? Many key questions necessary for the trier of fact to reach a decision went unanswered. The burden of proof was on Aurora to answer these questions. After the close of evidence, the court asked Auroras counsel for closing argument. The closing argument became more of a Socratic exercise, with the court asking Auroras counsel about various exhibits. However, as the court acknowledged, the authenticity of the documents was in dispute and if Aurora offered the documents into evidence the court expected Carlsens counsel was going to object to admission. (Trans. p.32, ln.19-24.) Auroras counsel did not offer the exhibits into evidence and the court never ruled on their admissibility. No documents were admitted into evidence. In his closing argument, Carlsens counsel admonished the court that it could not refer to documents that had not been admitted into evidence. (Trans. p.43, ln.5-25.) ARGUMENT I. MAY A TRIER OF FACT ENTER A FORECLOSURE JUDGMENT AGAINST A PARTY WHEN NO DOCUMENTS HAVE BEEN ADMITTED INTO EVIDENCE SHOWING A SECURITY INTEREST IN THE PROPERTY THE MOVING PARTY SEEKS TO FORECLOSE ON? A trier of fact may not enter a foreclosure judgment when the party seeking a foreclosure judgment fails to produce documents to show the party has a security interest in the real estate property. Chapter 706 of the Wisconsin Statutes governs
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transactions involving real property, including the mortgaging of real property. Pursuant to Wis. Stats. 706.02(1) (commonly referred to as the statute of frauds), mortgage transactions shall not be valid unless evidenced by a written instrument that satisfies all the following:
(a) Identifies the parties; and (b) Identifies the land; and (c) Identifies the interest conveyed, and any material term, condition, reservation, exception or contingency upon which the interest is to arise, continue or be extinguished, limited or encumbered; and (d) Is signed by or on behalf of each of the grantors; and (e) Is signed, or joined in by separate conveyance, by or on behalf of each spouse, if the conveyance alienates any interest of a married person in a homestead under s. 706.01 (7) except conveyances between spouses, but on a purchase money mortgage pledging that property as security only the purchaser need sign the mortgage; and (f) Is delivered.

Trials are evidentiary proceedings.

Aurora had ample opportunity to

prepare for trial: The case was commenced on December 11, 2008, and the trial was held on June 9, 2010. The court must presume that the Plaintiff provided the trial court with its best evidence. The Plaintiff didnt admit any written

instruments into evidence. The statute of frauds states that mortgage transactions shall not be valid unless evidenced by a conveyance meeting the requirements of Wis. Stats. 706.02(1). A conveyance is defined as a written instrument, evidencing a transaction governed by this chapter [Chapter 706], that satisfies the

requirements of s. 706.02. Wis. Stats. 706.01(4). The trial court could not find in favor of Aurora without a written mortgage instrument being entered into evidence. A written mortgage instrument was not entered into evidence. In fact, the court flatly rejected Auroras counsels attempt to enter a document into evidence that was purportedly a mortgage because the document failed to comply with Wis. Stats. 889.17 because it was not certified by the register of deeds. The trial court, a matter of law, should have found in favor of the Carlsens. II. MAY A TRIER OF FACT RELY ON DOCUMENTS NOT ADMITTED INTO EVIDENCE IN REACHING ITS DECISION? The trial court committed reversible error when it relied on documents not admitted into evidence to make its findings of fact. Generally, the standard of review of a trial courts findings of fact is a clearly erroneous standard. Wis. Stats. 805.17(2); Lessor v. Wangelin, 221 Wis.2d 659, 665, 586 N.W.2d 1 (Ct. App., 1998). When the trial court acts as the finder of fact, it is the ultimate arbiter of the credibility of the witnesses and of the weight to be given to each witnesss testimony. Id. (citing Plesko v. Figgie Intl, 190 Wis.2d 764, 775, 528 N.W.2d 446, 450 (Ct.App. 1994)). However, when the facts are undisputed a reviewing court will not give deference to a trial courts ruling. Ozaukee County v. Flessas, 140 Wis.2d 122, fn.1, 409 N.W.2d 408 (Ct. App. 1987). In the case before the court, there was only one witness, no documents were entered into evidence, and the evidence was not in dispute. The court did not need to observe multiple witnesses and their demeanor and did not need to make credibility determinations
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between competing testimony. There was only one witness and her testimony was uncontroverted. Because the witness testimony was undisputed and was the only evidence before the trial court, the appellate court should employ a standard of review consistent with a review of summary judgment. Summary judgment is properly granted if there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Am. Fam. Mut. Ins. Co. v. American Girl, Inc., 268 Wis.2d 16, 32, 673 N.W.2d 65 (2004). The standard of review for summary judgment is de novo. Id. The trial courts findings of fact were clearly erroneous because they were not based on the evidence. The court made four findings of fact in its decision, all of which were erroneous (Transcript, p.49, ln.19 to p.50, ln.4): Factual Finding No. 1: [T]here was a mortgage which was executed by David Carlsen and Nancy Carlsen in favor of U.S.A. Bank. Actual Evidence: There was no evidence the mortgage was executed in favor of U.S.A. Bank. There was no evidence the Carlsens were the

mortgagors of the mortgage. There was no evidence in what capacity the Carlsens had allegedly signed. Factual Finding No. 2: [T]he testimony here has been that the business records of Aurora Loan Services show a chain a chain of assignment of that mortgage, note and mortgage from through an intermediary. Actual Evidence: There was no evidence of a chain of assignment. There was no evidence linking the documents to each other. Auroras counsel
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argued that the documents showed a chain of evidence in his closing argument, but he referred to documents not admitted into evidence, and the court asked him to show the connection using documents not admitted into evidence. (Trans. p.31-38.) As Carlsens counsel stated to the court, these documents were not admitted into evidence for the court to use to make a factual determination. (Trans. p.43, ln.13-22.) Factual Finding No. 3: [T]he business records of Aurora Funding show on their face that there are recorded assignments. Actual Evidence: The business records of Aurora were not admitted into evidence, therefore the evidence does not support any finding regarding what the business records show on their face. There was no evidence the assignments were recorded. The only evidence was Conners testimony and her testimony did not draw any connection between the assignments, the note, the mortgage, the Carlsens, or Aurora. Her testimony does not raise a reasonable inference that the assignments of mortgage have anything to do with the note and mortgage she testified about or anything to do with this case. Factual Finding No. 4: Aurora is the holder of the note and owner of the mortgage. Actual Evidence: There was no evidence Aurora is the holder of the note and owner of the mortgage. The only evidence of Auroras connection to this case other than having a file with documents and an employee to
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serve as a witness is that Aurora services the note. (Trans. p.15, Ln. 2324.) The only evidence as to the holder of the note was Auroras own employee, who insisted the Carlsens were the holder of the note. (Trans. p.29, ln.17 to p.30, ln.5.) The courts findings of fact are not in the evidentiary record and they are not supported by reasonable inferences drawn from the evidence. They are not supported by the testimony of Conner. The courts facts are contained in

Auroras counsels closing arguments and the documents he referred to. But closing arguments are not evidence. State v. Mayo, 2007 WI 78 44, 734 N.W.2d 115 (2007). And the documents Auroras counsel referred to were not evidence. In addition, the trial court failed to employ a proper analysis in reaching its factual conclusions. A reviewing court will uphold the trier of facts decision if the court examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion using a rational process. Palisades Collection LLC v. Kalal, No. 2009AP482 12 (Ct. App. 2/4/2010). The trial court simply stated its factual conclusions without applying a legal standard or providing any rationale for why it reached its conclusions, other than the documents show a prima facie case of ownership. (Trans. p.50, ln.5-7.) But the documents were not admitted into evidence. The trial courts decision was dependent upon documents not admitted into evidence. If the documents relied upon are stripped from the courts decision, the court must have ruled in favor of the Carlsens.
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III.

MAY A WITNESS TESTIFY ABOUT DOCUMENTS IN A FILE THAT WERE GIVEN TO THE WITNESS TO PREPARE HER TESTIMONY WHEN THE WITNESS LACKED PERSONAL KNOWLEDGE ABOUT THE RECORDS OR HOW THE RECORDS WERE PREPARED?

The trial court erred in allowing Conner to testify about documents in Auroras file. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Wis. Stats. 906.02. Conner stated, I handle legal files and I also do mediations through the court program, different states. I also attend trials,

bankruptcy trials, trials as in this matter, also eviction trials for the company. (Trans. p.4, ln.20-23.) As part of her job she is required to review loan

documents, notes, mortgages, payment histories, and other loan documents. (Trans. p.5, ln.1-9). In preparation for trial, she reviewed the Auroras case file. (Trans. p.5, ln.7-9.) She further stated, I look at documentation. I do not physically handle original notes and documents, but I do acquire documentation. I do provide it to the company to have as part of a file. I do keep record of documentation. I note it in the system. I handle documents that I bring to trial with me. However, I do not physically as far as this original note, its held with our custodian. (Trans. p.8, ln.2-9.) Tellingly, she did not testify that she had personal knowledge of any of the document in the file she reviewed to testify in the present case. Auroras counsel tried to bootstrap the issue by having the witness testify that she was familiar with Auroras business filings and storage systems and that she is familiar with records that are prepared in the ordinary course of business. (Trans. p.11, ln. 24 to p. 12,
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ln.4.) But this misses the mark. For a witness to testify about records kept in the ordinary course of business, she has to have personal knowledge that the records (1) were made at or near the time by, or from, information transmitted by, a person with knowledge; and (2) that this was done in the course of a regularly conducted activity. Palisades Collection LLC at 20. A proper foundation did

not exist for her to testify about any of the documents. It is clear from her testimony that Conner was an employee of Aurora, she was a paid witness, she had testified for Aurora many times before, her knowledge of this particular case was limited to reviewing the documents in the file she was given prior to trial, and she did not have personal knowledge of any of the records in the file or how they were prepared. She was a parrot. Her testimony, other than her testimony about her employment duties, was hearsay. See Berg-Zimmer & Associates, Inc. v. Central Manufacturing Corp., 148 Wis. 2d 341, 350-351, 434 N.W.2d 834 (Ct. App. 1988). As sparse as her testimony was, every aspect of her testimony regarding documents was inadmissible hearsay. Her statement, Exhibit A is the balloon note, (Trans. p.5, ln.22-23.), is inadmissible hearsay. She could testify that Exhibit A was a piece of paper with the words balloon note written on it which describes readily discernable physical facts but the requisite foundation was not laid for her to testify it was a balloon note. This testimony was hearsay. She could testify that Exhibit B had the word mortgage on a piece of paper and could describe other discernable physical facts about the paper, but she did not have personal knowledge to testify it was a mortgage. While the court prohibited
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Conner from testifying about many, many aspects of the documents in Auroras file, it should have prohibited her from testifying about any of the documents until and unless a proper foundation was made. It appears the courts reasoning for allowing her to testify about the documents was subject to the court admitting the documents into evidence (Whether this [the note] comes into evidence or not, I dont know. (Trans. p.6, ln.11-15.); I can look at them [the assignments of mortgage] and determine as much as this witness is saying. (Trans. p.11, ln.14.)) However, the documents were never admitted into evidence. If Conners testimony regarding the documents was inadmissible, then the only evidence remaining is her testimony that she was employed by Aurora Loan Services since 2008 and her description of her job duties. Essentially Aurora had no case, the judgment must be vacated, and judgment must be entered in favor of the Carlsens. CONCLUSION The defendants-appellants request that the judgment of the trial court be reversed and the trial court be ordered to enter judgment for defendants-appellants. Respectfully submitted,

Reed J. Peterson Attorney for the Carlsens State Bar No. 1022323 Reed Peterson & Associates 7818 Big Sky Drive, Ste. 214 Madison, WI 53719 (608) 212-2322
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APPENDIX This Appendix is included pursuant to Wis. Stats. 809.19(2)(a). Findings of the Circuit Court The court found for the plaintiff, Aurora Loan Servicing, LLC, and entered a judgment of foreclosure in favor of Aurora. The court found (Trans. p.49, ln.19 to p.50, ln.4): 1. [T]here was a mortgage which was executed by David Carlsen and Nancy Carlsen in favor of U.S.A. Bank. 2. [T]he testimony here has been that the business records of Aurora Loan Services show a chain a chain of assignment of that mortgage, note and mortgage from through an intermediary. 3. [T]he business records of Aurora Funding show on their face that there are recorded assignments. 4. Aurora is the holder of the note and owner of the mortgage. The Circuit Courts Reasoning The court reasoned that the documents that those business records create at least those records create a prima facie case of ownership. (Trans. p.50, ln.57.) Portions of the Record Essential to an Understanding of the Issues Raised The trial transcript is very short (only 49 pages) and contains the portions of the record essential to an understanding of the issues. The transcript contains
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the testimony of one witness which consists of 28 pages. The testimony is filled with objections as to the admissibility of the witness testimony. To try to cite to specific pages in the record would be a futile effort, because virtually every page contains testimony or objections that form the basis of this appeal.

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CERTIFICATION ON APPENDIX I hereby certify that filed with this brief, either as a separate document or as a part of this brief, is an appendix that complies with s. 809.19 (2) (a) and that contains, at a minimum: (1) a table of contents; (2) the findings or opinion of the circuit court; and (3) portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit courts reasoning regarding those issues. I further certify that if this appeal is taken from a circuit court order or judgment entered in a judicial review of an administrative decision, the appendix contains the findings of fact and conclusions of law, if any, and final decision of the administrative agency. I further certify that if the record is required by law to be confidential, the portions of the record included in the appendix are reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record. I further certify that I have filed an electronic copy of this appendix pursuant to s. 809.21(13) and the contents of the electronic copy are identical to the contents of the paper copy of the appendix.

Reed J. Peterson Attorney for the Carlsens State Bar No. 1022323 Reed Peterson & Associates 7818 Big Sky Drive, Ste. 214 Madison, WI 53719 (608) 212-2322

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FORM AND LENGTH CERTIFICATION I hereby certify that this brief conforms to the rules contained in s. 809.19 (8) (b) and (c) for a brief and appendix produced with a proportional serif font. The length of this brief is 4,312 words. I further certify that I have filed an electronic copy of this brief pursuant to s. 809.21(12) and the text of the electronic copy is identical to the text of the paper copy of the brief.

Reed J. Peterson Attorney for the Carlsens State Bar No. 1022323 Reed Peterson & Associates 7818 Big Sky Drive, Ste. 214 Madison, WI 53719 (608) 212-2322

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