Court of Appeals Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Appellate Procedure | Commercial Law | Consumer Act | Criminal Law | Employment Law | Family Law | Juvenile Law |

Appellate Procedure

Absconding - Forfeiture of Rights - Juveniles - Direct Appeal

State v. Lamontae D.M., No. 98-1700 (filed 2 Dec. 1998) (ordered published 27 Jan. 1999)

Deciding an issue of first impression, the court held that a juvenile who absconds from court-ordered treatment forfeits the right of direct appeal. The juvenile in this case "ran away" from a residential treatment center one day after being placed there. The court of appeals, in an opinion written by Judge Anderson, relied upon case law holding that adults who are fugitives during the pendency of post-conviction proceedings forfeit their ability to pursue those remedies. No reported decision distinguished between an escape while a direct appeal was pending and an escape during the pendency of post-conviction relief. The juvenile's escape "demonstrates his utter contempt for the judicial system and lack of respect for the laws of the State of Wisconsin."

Small Claims Actions - Pro Se Representation - Frivolous Appeal

Holz v. Busy Bees Contracting Inc., No. 98-1076 (filed 9 Dec. 1998) (ordered published 27 Jan. 1999)

The Holzes won a small claims judgment against their contractor based on its shoddy construction of a retaining wall. They received as damages the cost of having the wall rebuilt. The contractor appealed.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed. First, the court held that it had jurisdiction over the appeal even though the notice of appeal was filed by the contractor's "nonlawyer president": "[L]itigants in small claims cases have as much interest in obtaining 'speedy and inexpensive justice' on the appellate level as well as the trial level." Second, the court held that the evidence was sufficient to support the trial court's finding that the work had not been performed in a workmanlike manner.

Third, the court held that the contractor's appeal was frivolous. Lawyers as well as pro se litigants are obligated to make a reasonable investigation of the law and facts before filing an appeal. Here, the contractor's sufficiency of the evidence appeal was totally lacking in merit. Any "slack" that the contractor deserved as a nonlawyer was outweighed by harm to the Holzes; namely, the "unnecessary and burdensome financial obligations that should never have been incurred in the first place." The matter was remanded for a determination of reasonable costs and attorney fees.

Commercial Law

Security Interest - Accounts Receivable

Sierra Finance Corp. v. Excel Laboratories, No. 97-2450 (filed 22 Dec. 1998) (ordered published 27 Jan. 1999)

A trial court found that Sierra Finance Corp. had no security interest in the accounts receivable of Excel Laboratories, its debtor. Sierra loaned $40,000 to Excel, which executed a general business security agreement. The security agreement contained a definition of "collateral" that included language that Sierra would "designate" the accounts to which its security agreement would attach. It never did so. When Excel went into liquidation, the receiver objected to Sierra's claim that it had a superior security interest in the accounts receivable.

The court of appeals, in an opinion written by Judge Schudson, affirmed. Relying on the "express terms of the security agreement," the court held that "Sierra did not have a security interest until it 'designated' specific accounts," which it never did. Since no Wisconsin decision had addressed this issue, the court looked at cases from other jurisdictions that established a "clear principle": Where the terms of a security agreement specifically limit the collateral, or where the terms of a security agreement establish that attachment is contingent on subsequent specification of the collateral, the secured party has no security interest beyond the limitation or before the satisfaction of the contingency." The problem in this case was that Sierra was not content with a "floating lien" on accounts receivable, but limited itself to a floating lien on specifically "designated" accounts and then never followed through on the condition.

Consumer Act

Rent-to-Own Transactions - Applicability of Wisconsin Consumer Act

LeBakken Rent-to-Own v. Warnell, No. 98-1569-FT (filed 8 Dec. 1998) (ordered published 27 Jan. 1999)

LaBakken Rent-to-Own and Warnell entered into a contract labeled "Consumer Rental Agreement." Under the contract Warnell agreed to make weekly or monthly payments for the use of a refrigerator. The cash price of the appliance was $551 and the rental period was 87 weeks or 20 months. Warnell could, at his option, terminate the agreement at any time by returning the refrigerator and paying all amounts due through the date of return, while LaBakken could terminate only if Warnell failed to make payments or otherwise breached the agreement. Warnell had the option to make all 87 payments and then purchase the refrigerator for an additional $179, meaning that he would have paid $1,102 for the refrigerator. In addition, the agreement contained an early purchase option by which Warnell could purchase the refrigerator at any time during the lease period if he paid 50 percent of the difference between the total payments necessary to acquire ownership and the total amount of rental payments paid.

In November 1996 Warnell failed to pay the rental fee or return the refrigerator and LaBakken filed a pro se form complaint in small claims court for replevin of the refrigerator and money damages. It was undisputed that the complaint did not comply with the pleading requirements of the Wisconsin Consumer Act because it failed to contain the figures necessary for computation of the amount LaBakken alleged that it was entitled to recover. See Wis. Stat. § 425.109(1).

Warnell alleged that because his consumer rental agreement with LaBakken was a consumer credit transaction under the Wisconsin Consumer Act, LaBakken's failure to comply with the pleading requirements required that the complaint be dismissed with costs. The circuit court ruled that the agreement was not subject to the Act. In a majority decision authored by Chief Judge Cane, the court of appeals reversed. It concluded that the matter was a consumer credit transaction subject to the Wisconsin Consumer Act. Accordingly, the court reversed and remanded the case to the circuit court with directions to award Warnell costs and reasonable attorney fees.

Judge Hoover filed a concurring opinion.

Criminal Law

Child Enticement - Multiplicity

State v. Church, No. 97-3140-CR (filed 17 Dec. 1998) (ordered published 27 Jan. 1999)

The defendant invited a 17-year-old boy to travel with him from Iowa to Wisconsin Dells. Thereafter they went to a hotel in Madison where the defendant gave the boy a marijuana cigarette, which they both smoked. The defendant also gave the boy an alcohol drink that had been surreptitiously laced with a prescription painkiller. After the boy fell asleep, the defendant exposed and photographed the boy's penis and touched it several times.

A jury found the defendant guilty of many charges, including two counts of child enticement: one for enticement with intent to cause a child to expose a sex organ contrary to Wis. Stat. section 948.07(3), and a second for enticement with intent to give a controlled substance to a child contrary to section 948.07(6). These multiple child enticement convictions were appealed on the ground that they are multiplicitous because they are based on a single act of enticement. In a majority decision authored by Judge Deininger, the court of appeals reversed.

Section 948.07 provides that "whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class BC felony: . . . (3) exposing a sex organ to the child or causing the child to expose a sex organ . . .; (6) giving or selling to the child a controlled substance or controlled substance analog. . . ." The appellate court concluded that the two counts of child enticement of which the defendant was convicted are multiplicitous because the statute does not permit multiple punishments for one act of enticement, even though the defendant intended multiple misdeeds, rather than a single misdeed, with the victim.

Judge Dykman filed a dissenting opinion.

Employment Law

Family and Medical Leave Act - Civil Action for Damages Following Unsuccessful Results in Administrative Proceedings

Butzlaff v. Wisconsin Department of Health and Family Services, No. 98-0453 (filed 17 Dec. 1998) (ordered published 27 Jan. 1999)

The plaintiff was terminated from his position as a security officer at Mendota Mental Health Institute in 1990. He filed a complaint with the personnel commission asserting that he was fired because he had to take time off from work to attend to his wife and sick child, in violation of the Family and Medical Leave Act (FMLA). After a hearing, the commission determined that the plaintiff failed to meet his burden of proving that his employer, the Department of Health and Family Services, had violated the FMLA. The plaintiff sought judicial review under Wis. Stat. section 227.52 and the circuit court affirmed. The plaintiff did not appeal that decision to the court of appeals.

Instead, he filed an action in circuit court asserting the same FMLA violation as that asserted before the personnel commission. The state moved to dismiss the complaint on the ground of sovereign immunity, asserting that 1) the FMLA does not permit a civil action unless the employee has prevailed in the administrative proceeding and judicial review, or 2) the statute was ambiguous on that point and was therefore not a clear and express consent to sue the state. The circuit court denied the motion, concluding that the statute plainly permitted a civil action whether or not the employee had been successful in the administrative hearing and judicial review.

In a majority decision authored by Judge Vergeront, the court of appeals reversed. It concluded that the Legislature has clearly and expressly waived state sovereign immunity in actions by employees under the FMLA. It further held that the FMLA permits civil actions for damages only by those employees who have first prevailed in the required administrative proceeding and judicial review.

Judge Dykman filed a dissenting opinion.

Wage Claims - Private Cause of Action Against Employers - Sovereign Immunity of the State

German v. Wisconsin Department of Transportation, No. 98-0250 (filed 3 Dec. 1998) (ordered published 27 Jan. 1999)

In this case the Wisconsin Department of Transportation (DOT) appealed an order denying its motion to dismiss the wage claims of several Wisconsin State Patrol officers. The officers sued the DOT under Wis. Stat. section 109.03(5) seeking compensation for their meal breaks. The officers asserted that their breaks are not free of job duties and are therefore compensable work time under Wis. Admin. Code section DWD 274.02(3), which requires employers to pay for on-duty meal periods.

The DOT contended that it is protected by sovereign immunity and is therefore immune from suit. It also argued that the officers' claim is not a wage claim that can be brought under section 109.03(5). DOT's position was that a claim under the hours and overtime regulations in DWD 274 may not be brought directly to court by an employee, but must first be brought to the Department of Workforce Development (DWD).

Wis. Stat. section 109.03(5), which is part of the wage claim law, provides that employees may sue their employers for wages earned, but not promptly paid. The court of appeals, in an opinion written by Judge Deininger, concluded that this statute waives the state's sovereign immunity with respect to claims by state employees for wages due. The appellate court also concluded that the right of action created by the statute permits employees to sue employers for wage claims deriving from hours and overtime regulations without first pursuing the claim with the Department of Workforce Development.

Family Law

Paternity Actions - Power of Court to Change Surname of Child on Motion of Father

In re Paternity of Noah J.M., No. 97-2353 (filed 29 Dec. 1998) (ordered published 27 Jan. 1999)

In August 1995 Linda M.M., who was unmarried, gave birth to Noah. She named Noah, giving him her surname. Five months later she filed a paternity action alleging that Charles was Noah's father. Charles initially denied paternity but, after receiving blood test results, acknowledged that he was Noah's father and a judgment of paternity was entered. In the course of the paternity proceedings, Charles requested that the court change Noah's surname to his own. The circuit court granted the request and Linda appealed.

In a decision authored by Judge Schudson, the court of appeals reversed. It concluded that the court had no authority to change Noah's surname upon his father's request, absent compliance with Wis. Stat. section 786.36 and absent the agreement of Noah's mother. [Section 786.36 provides in relevant part that "if the person whose name is to be changed is a minor under the age of 14 years, the petition may be made by: both parents, if living, or the survivor of them; . . . or the mother, if the minor is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under section 767.60, except that the father must also make the petition unless his rights have been legally terminated."]

Juvenile Law

Delinquency Proceedings - Amending Charge After Evidence Presented

State v. Tawanna H., No. 98-1404-FT (filed 8 Dec. 1998) (ordered published 27 Jan. 1999)

The juvenile was arrested and charged with misdemeanor battery via a juvenile delinquency petition. The juvenile denied the accusation. Following testimony, the juvenile court found her not guilty of battery but, sua sponte and without notice, amended the juvenile petition from battery to disorderly conduct. The court entered a dispositional order adjudging her delinquent for disorderly conduct and placing her on one-year supervision. The juvenile appealed.

In a decision authored by Judge Wedemeyer, the court of appeals reversed. It held that the juvenile was not properly notified of the disorderly conduct charge so as to satisfy basic due process and, as a result, her ability to defend herself was unfairly prejudiced, contrary to Wis. Stat. section 938.263(2). This statute provides that after the taking of a plea, the court may allow amendment of the petition to conform to the proof if the amendment is not prejudicial to the juvenile.

In this case there was no notice given to the juvenile that she was subject to a disorderly conduct charge. She was accused of battery and there was no indication in the state's trial presentation of an intention to submit proofs of any other charge. It was evident to the appellate court from the trial transcript that the three witnesses called by the defense were there for the sole purpose of testifying about the alleged battery and the cross examination of the two state's witnesses related solely to the battery charge. Closing arguments by both counsel further underscored that the issue in the trial was battery. The juvenile was successful in her defense against the charged offense, but then was found guilty of an entirely different offense of which she had not been informed and against which she had not prepared.

The court noted that the elements of battery and disorderly conduct are not similar and clearly are not the same. In footnote the court observed that disorderly conduct is not a lesser included offense of battery and that the holding in this case should not be construed to mean that a conviction of a lesser included offense would be prejudicial.

Because the amended charge occurred in this case without proper notice, it unfairly prejudiced the juvenile's statutory and due process rights. Accordingly, the court of appeals reversed.

Wisconsin Lawyer