Court of Appeals Digest

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

This column summarizes selected published opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

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Alternative Dispute Resolution

Arbitration Proceedings - Issue Preclusion

Dane County v. Dane County Union Local 65, No. 96-0359
(filed 17 April 1997) (ordered published 27 May 1997)

Two separate arbitration proceedings were conducted in connection with a county highway laborer who was placed on disability leave and then subsequently terminated. The first proceeding concerned a grievance arising out of his placement on disability leave and the second, conducted by a different arbitrator, concerned a grievance filed after termination and dealing with whether that termination occurred without just cause. Among the issues before the court of appeals was one of first impression in Wisconsin: whether one arbitrator's decision can have preclusive effect on the ability of a second arbitrator to make certain decisions.

To resolve this issue, the court had to consider the policies that underlie arbitration. It is an informal process, where the parties have bargained to have a decisionmaker who is not restricted by the formalistic rules that govern courtroom proceedings. Arbitration is designed to bring an end to controversy. Employees, unions and employers all rely upon the finality of arbitration decisions in ordering their affairs. If identical claims, or identical issues which the arbitrator necessarily decides, can become the subject of repetitive arbitrations between the same parties simply by resubmitting the controversy to a new arbitrator, a "final and binding" arbitration will never occur. On the other hand, preclusion doctrines may be less suited to the informality of the arbitration process.

Courts in other jurisdictions that have considered whether one arbitrator's decision can have a preclusive effect on the ability of a second arbitrator to make certain decisions have concluded that in certain circumstances the preclusion doctrines may be applied.

In this case the appellate court concluded that the policies underlying arbitration, its consensual, final and binding nature, weigh in favor of allowing the application of preclusion doctrines to a limited extent. Where, at a minimum, the claim or the issue necessarily decided in the first arbitration is the same as in the second arbitration, the parties are the same, the parties have had full opportunity to argue their respective positions to the first arbitrator, and the parties have not agreed to resubmit the claim or the issue necessarily decided in the first arbitration to a second arbitration, then the preclusion doctrines may be applied by an arbitrator or by a reviewing court.

Civil Procedure

Customized Jury Instructions - Propriety of Advising Jury Regarding Settling Defendants - Reading Caption of Case to Jury

Anderson v. Alfa-Laval Agri. Inc., No. 96-0577 (filed 18 Feb. 1997) (ordered published 29 April 1997)

The plaintiff's child was seriously injured when he consumed an extremely caustic chemical used by and then leaked from a milk line cleaning system used to flush and sanitize pipes that transport milk from milking barns to storage tanks. Suit was brought against numerous defendants. Before trial the plaintiff settled with each of the defendants except Alfa-Laval (the manufacturer of the cleaning system), although the document reflecting that settlement had not been signed by all interested parties when the trial against Alfa-Laval started.

At trial plaintiff's counsel asked the court to modify the case caption to delete the settling defendants and moved in limine for an order eliminating reference to any such settlements. The court denied the motion, advised the jury of the full caption containing the names of each of the defendants, and informed the jury that a "negotiated resolution" had been reached with the other parties in the case. Reference to the negotiated settlement also was made by Alfa-Laval's counsel. The jury concluded that the plaintiff herself was 50 percent causally negligent, that the manufacturer of the chemical solution was 35 percent causally negligent, and that the manufacturer of the pump used to move the caustic chemical was 15 percent causally negligent. None of the other defendants was found causally negligent, including Alfa-Laval (the only defendant against whom the case was tried before the jury).

On appeal the plaintiff argued that the trial court erred by reading the entire case caption which included the defendants who were not present at trial because they had entered into a Pierringer settlement (see Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W.2d 106 (1963)) and that the court further erred by advising the jury of the existence of a settlement between the plaintiff and the other defendants named in the caption. In a decision authored by Judge Myse, the court of appeals concluded that the judge did not err by reading the entire case caption to the jury. The caption to be read is the caption as it exists on the day of trial. The court can modify the caption to reflect settlements that occur before trial. In this case the judge had discretion to accept representations of a settlement and amend the caption accordingly or to require proper documentation before doing so. Here the court chose to require proper documentation and, because that documentation was not in order when the trial started, the judge was required to read the entire caption to the jury.

The court of appeals further concluded that the circuit judge erred by advising the jury as to the existence of a negotiated resolution between the plaintiff and the various defendants. In so holding it found that the decision in Hareng v. Blanke, 90 Wis. 2d 158, 279 N.W.2d 437 (1979), did not apply to this case. Hareng recognizes that settlement negotiations are not privileged when introduced for another purpose such as demonstrating bias or prejudice of a witness. There was no contention that the settlement in this case among the other defendants changed the testimony of any witness or that the posture of any of the settling defendants was significantly different as a result of the settlement. The court went on to conclude that, within the factual context of this case, the trial judge's error in advising the jury about the settlements was harmless.

Finally, the court considered the plaintiff's contention that the circuit judge erred by refusing to submit to the jury a series of proposed instructions specifically tailored to address the various theories of liability asserted under the specific facts of this case. The appellate court concluded that the better practice would have been for the trial court to customize at least some of the instructions given to the jury rather than to rely entirely on standard jury instructions published in Wisconsin JI-Civil. The customized jury instructions requested by counsel would have better focused the issues in this case for the jury. Nonetheless, the court held that the pattern instructions given by the judge were adequate in that they were accurate and sufficiently complete to advise the jury as to the proper legal principles it was to apply.

Commercial Law

Consumer Transactions - Disability Insurance - Defaults

Bank One Milwaukee N.A. v. Harris, No. 96-0903 (filed 11 March 1997) (ordered published 29 April 1997)

Harris bought a car from an auto dealer pursuant to a Wisconsin consumer installment agreement. The agreement, purchased by Bank One, required Harris to make monthly payments of $297 due on the 16th of each month. In conjunction with and on the same contract financing her car loan, Harris also purchased credit disability insurance to cover her monthly payments in the event she became disabled. This all took place in October 1992.

On July 2, 1994, Harris became disabled as a result of injuries she suffered in a car accident. She did not make her July payment. Until the time she became disabled, Harris had been current on her monthly payments except for a $96 past due charge.

Harris promptly informed her credit disability insurer of her accident and disability and, as instructed by the insurer, she also informed Bank One that she would be receiving forms requiring signatures by her and her doctor. Harris received the forms, obtained the signatures and returned the forms to the insurer as instructed. On July 28, however, Bank One prepared and sent a notice of right to cure default to what it believed to be Harris's last known address.

The disability insurer paid $267 of Harris's July payment, an amount the insurer deemed proportionate to the period of disability. That payment, however, was not received by Bank One until Aug. 16, 1994, one month after the deadline for the July payment. On Sept. 9 Bank One filed a replevin action against Harris. It claimed that, pursuant to section 425.103 of the Wisconsin Statutes, Harris was more than one month's payment behind and therefore was in "default." It was undisputed in the case that, if the insurer's payment for July had been credited, Harris would not have been in default.

The issue before the court of appeals was whether Bank One could include the unpaid July amount in computing Harris's unpaid balance for the purpose of establishing default. In a decision authored by Judge Schudson, the court concluded that under the circumstances of this case it would be an unconscionable practice to include an unpaid monthly amount covered by disability insurance in computing the unpaid balance for purposes of establishing default. Said the court, where a consumer has purchased disability insurance in conjunction with an installment agreement and has promptly informed the insurer of a valid claim, the creditor may not include the amount to be paid by the insurer in the computation of the debtor's unpaid balance to establish default.

Criminal Procedure

Intensive Sanctions Program - Escape - Double Jeopardy

State v. Grosse, No. 96-2027-CR (filed 10 April 1997) (ordered published 27 May l997)

In 1994 the defendant received a three-year sentence to the Division of Intensive Sanctions (DIS) for his conviction of burglary. He eventually was placed at a halfway house in Beloit, Wis.

On Oct. 26, 1994, the defendant left the halfway house to visit his mother in Arizona. Ten days later he was apprehended. He remained in jail in Arizona while contesting extradition to Wisconsin. When he was returned to Wisconsin, DIS sanctioned him with a six-month confinement at Racine Correctional Institution (a Type I prison) for the escape, crediting him with the three months he served in Arizona. On May 2, 1995, he was released to a halfway house.

On Aug. 24, 1995, the state charged the defendant with escape for leaving the halfway house on Oct. 26, 1994. The defendant pleaded guilty and was sentenced to three years in prison, consecutive to the DIS sentence. He moved for postconviction relief, arguing that the escape conviction was barred by the Double Jeopardy Clause. The circuit court denied the motion.

The court of appeals, in a decision authored by Judge Dykman, affirmed the circuit court. It concluded that the DIS action of sanctioning the defendant with a period of confinement at the Racine Correctional Institution was not punitive for double jeopardy purposes and, therefore, the defendant was not subjected to double jeopardy when he subsequently was convicted of escape. The court rejected the defendant's argument that his six-month confinement sanction was primarily intended as punishment. It found that: 1) considering the remedial purposes of DIS sanctions set forth in the Wisconsin Statutes and Administrative Code, the defendant did not overcome his burden to establish beyond a reasonable doubt the unconstitutionality of his DIS confinement and subsequent conviction for escape; 2) a sanction need not be solely remedial in purpose to fall outside the ambit of the Double Jeopardy Clause; and 3) any punishment the defendant received as part of his DIS sanction was attributable to the conviction for which he was originally sentenced to DIS - not to the escape.

Modification of Sentence - New Factors - Defendant's Health Condition

State v. Johnson, No. 96-1532-CR (filed 15 April 1997) (ordered published 27 May 1997)

The defendant was convicted of armed robbery and sentenced to 15 years in prison. Among the issues on appeal was whether he is entitled to sentence modification because he allegedly is not receiving adequate medical treatment in prison. The trial court denied him relief in this regard.

The defendant wants a liver transplant. His treating physician suggested that he be considered for such a procedure, but the medical director of the Bureau of Health Services of the Department of Corrections concluded that he is "no candidate for liver transplant." The record does not reveal the medical director's reasons.

In denying the defendant relief without a hearing, the trial judge concluded that he had not raised the kind of "new factor" that is required for modification of his original sentence, because the defendant's medical condition was known both to him and the trial judge prior to the original sentence imposition.

The court of appeals, in a decision authored by Judge Fine, affirmed. Said the court, the defendant's complaint is medical - a difference of opinion between physicians. Resentencing or modification of the sentence already imposed is not the mechanism by which these medical differences can be resolved. The failure of prison authorities to further process the defendant for a liver transplant could not and, as explained by the sentencing judge in his denial of postconviction relief, did not frustrate the judge's original intent in imposing sentence. The defendant may pursue other remedies if he believes that he is unlawfully being denied viable and appropriate treatment in prison. However, he has not alleged the existence of a "new factor" as that term of art has been construed in sentence modification cases.

Discovery Interviews - Character for Truthfulness - Doctrine of Completeness

State v. Eugenio, No. 96-1394-CR (filed 23 April 1997) (ordered published 27 May 1997)

The court of appeals, in an opinion written by Judge Brown, affirmed the defendant's conviction for sexually assaulting a six-year-old girl. The defendant raised three claims.

First, he argued that the prosecutor had a duty to encourage the victim to make herself available for an interview with the defense investigator, citing Standard 3.1(c) of the ABA's Standards Relating to the Prosecution Function (1971) and the case law adopting it. Judge Brown explained, however, that the comments accompanying Standard 3.1(c) are not authority because the supreme court did not adopt them. In this case the prosecutor remained neutral during the meeting between the victim and the investigator; the prosecution had no duty to encourage the victim to participate.

Second, the defense claimed error when the trial court admitted evidence of the victim's truthful character. Under section 906.08 of the Wisconsin Statutes, evidence of a witness's (positive) character for truthfulness is not admissible unless this character trait has been attacked. Not all forms of impeachment open the door to this form of rehabilitation. The court held that the trial judge acted within his discretion when he ruled that the victim's character had been attacked during the defendant's opening statement. Case law gives trial judges broad discretion in gauging the "tenor" of an impeaching attack as an assault on the witness's character or as a more generalized attack on credibility. The opening statement strongly suggested that the witness had "fabricated" the story, not that she was simply mistaken or confused.

Third, the trial judge properly applied the "doctrine of completeness" under section 901.07 by admitting the remainder of the victim's statements after she had been cross-examined about several inconsistencies. Case law sagely warns against the use of the doctrine as a "Trojan Horse" whereby one inconsistent statement opens the door to the admission of remaining out-of-court statements. The record here, however, demonstrated the fairness of allowing the remaining statements where the defense alleged a "systematic pattern of lying about the events."

Jury Unanimity - No Contest Plea

State v. Molitor, No. 96-2673-CR (filed 24 April 1997) (ordered published 27 May 1997)

The defendant was charged with sexually assaulting a 15-year-old girl contrary to section 948.025(1) of the Wisconsin Statutes, which imposes a more severe penalty where the defendant commits three or more violations with the same child. He pleaded no contest and was convicted. In postconviction motions, he raised several challenges.

The court of appeals, in an opinion written by Judge Deininger, affirmed the defendant's conviction. First, the court upheld the constitutionality of section 948.025(2), which provides that "the jury must unanimously agree that at least 3 violations occurred within the time period ... but need not agree on which acts constitute the requisite number." The statute did not infringe upon the defendant's right to a unanimous verdict.

Second, the court also found that the defendant's no contest plea was properly accepted. Although the record at the plea supported the defendant's claim that he was not informed of the elements of section 948.025(1) and defense counsel did not specifically recall reviewing the elements with him, evidence offered at the postconviction hearing showed that the defendant had, in fact, knowledge of these elements.

Family Law

Divorce Following Remarriage to Same Party - Impact of Maintenance Order in First Divorce Action

Wolski v. Wolski, No. 96-0136 (filed 15 April 1997) (ordered published 27 May 1997)

Chris and Arlene Wolski were first married in 1972; they had two children. They were divorced in 1992 and, at that time, the trial court accepted a marital settlement agreement between the parties that divided their property and included custody, placement and child support provisions. It also required Chris to pay limited maintenance of $200 per month for 54 months to Arlene.

Eleven months later Chris and Arlene remarried, ending Chris's obligations to pay child support and maintenance. Three years later Arlene filed a new petition for divorce. At the second divorce trial, the parties reached an agreement on all issues except maintenance. The sole contested issue was whether maintenance should be awarded to Arlene and, if so, how much should be paid and how long it should last. Chris took the position that the trial court should view this marriage as being less than three years in length when deciding maintenance or, if awarding maintenance, the court should be required to consider the limited maintenance provisions in the first agreement. Arlene urged the trial court to look at the combined length of their marriages when setting maintenance.

The trial court found that it could consider the combined length of the two marriages and ordered $300 per month indefinite maintenance to Arlene. In so finding, the judge disregarded the length and amount of maintenance ordered in the first divorce proceeding.

Chris appealed and the court of appeals, in a decision authored by Judge Curly, affirmed. It began its analysis by noting that, once the parties remarried, the earlier judgment was revoked and any orders emanating out of it were rescinded. See Wis. Stat. § 767.38. The court then determined that authority for combining the years of marriage to determine maintenance may be found in the factors listed for consideration in section 767.26(6), which include "the feasibility that the party seeking maintenance can become self-supporting at the standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal."

Given this statutory directive, the court concluded that a reasoned approach to determining the standard of living enjoyed during the marriage of the parties in this case requires the trial judge to look beyond the duration of the second marriage, because whatever standard of living was enjoyed by Arlene and Chris was established during the 22-plus years they were married to each other - not just the last two years. When the parties have been married to one another more than once, a trial court, in its exercise of discretion, can properly look at the total number of years of marriage when considering maintenance for one of the parties. Accordingly, the trial judge did not erroneously exercise his discretion in using the combined years of marriage when setting maintenance.

Chris alternatively argued that if the trial court can look at the entire length of the parties' marital relationship, then the trial court must be required to consider the terms of the first marital settlement agreement when setting maintenance. The court of appeals concluded that, although the trial court was aware of the first settlement's provisions regarding maintenance, it was not bound by them and in a proper exercise of discretion looked to the current conditions of the parties in making its maintenance determination. The court further noted, however, that the trial judge may consider the terms of the first marital settlement agreement when appropriate.

Divorce - Third-party Complaints

Zabel v. Zabel, No. 96-3092 (filed 22 April 1997) (ordered published 27 May 1997)

Ron and Leslie Zabel filed a joint petition for divorce. Thereafter, Leslie filed a third-party complaint naming Vivian Zabel, Ron's mother, as a third-party defendant. Leslie alleged that certain real property titled in Vivian's name was marital property and therefore subject to division as part of the divorce. Leslie alleged that Ron used marital assets to purchase the property, to pay for the materials to build and maintain a home on the property and to pay the taxes on the property. Leslie alleged that the property was titled in Vivian's name to avoid division in the event of a divorce between Ron and Leslie.

Vivian moved to dismiss the third-party complaint joining her as a defendant in her son's divorce action. She argued that Chapter 767 of the Wisconsin Statutes relating to actions affecting the family does not permit third-party actions. The circuit court denied the motion and the court of appeals, in a decision authored by Judge LaRocque, affirmed.

Vivian argued that dismissal of the third-party complaint was required because the only proper remedy for transfer of marital assets to a third party is an unequal property division under sections 767.275 and 767.255 of the Wisconsin Statutes or an independent action. The court disagreed. It noted that squandering the marriage assets or intentional or neglectful destruction of marital property may be considered by a court in its decision to divide marital property pursuant to section 767.255. But it concluded that this is not the only remedy. Wisconsin courts have recognized consistently that a court in a divorce proceeding has additional powers to hear equitable claims against third persons that affect the rights of the parties to the divorce. The court concluded that joinder of Vivian as a defendant would be proper under section 803.03(1)(a), joinder of persons needed for just and complete adjudication, because in Vivian's absence a complete adjudication of the parties' marital property rights cannot be accomplished. A majority of states permit joinder of third persons when the family court cannot fulfill its duty to distribute marital property equitably if prevented from determining the extent of that property by the absence of third parties claiming an interest in it.

Vivian further argued that use of a family court action would deprive her of her right to a jury trial. The court of appeals disagreed. The right to a jury trial under the state constitution does not extend to equity cases in which the party has never been entitled to a jury trial as a matter of right. There is no right to a jury trial in divorce actions. Wisconsin courts continue to recognize the difference between legal and equitable remedies in determining whether there is a constitutional right to a jury trial. When equitable relief is requested, there is no constitutional right to a jury.

Motor Vehicle Law

OWI - Refusal to Submit to Field Sobriety Tests - Admissibility of Refusal

State v. Mallick, No. 96-3048-CR (filed 24 April 1997) (ordered published 27 May 1997)

The defendant was convicted of a criminal charge of driving while under the influence of intoxicants. On appeal he raised but a single issue: whether the trial court erred when it admitted evidence that he refused to perform field sobriety tests at the arresting officer's request. The court of appeals, in a decision authored by Chief Judge Eich, affirmed the conviction.

The defendant's contention was that the field sobriety tests are the equivalent of a "testimonial act," the evidence of which is admissible under the self-incrimination provisions of Article I, section 8 of the Wisconsin Constitution. The court of appeals concluded that neither the Fifth Amendment to the U.S. Constitution nor the cited provision of the Wisconsin Constitution bars admission of the defendant's refusal to submit to field sobriety tests at his trial.

In reaching this conclusion the court was influenced by the reasoning of the Virginia Court of Appeals when it considered the same issue in Farmer v. Commonwealth of Virginia, 404 S.E.2d 371 (Va. Ct. App. 1991). Said the Virginia court in Farmer: "The privilege against self-incrimination protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. In order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. In Schmerber v. California, 384 U.S. 757, 764 (1966), the Supreme Court stated that the Fifth Amendment offers no protection against compulsion to submit to fingerprinting, photographing or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk or to make a particular gesture. The fact of the refusal to perform tests that do not themselves constitute communicative or testimonial evidence is equally noncommunicative and nontestimonial in nature."

OWI - Implied Consent - Inadequate Warnings - Admissibility of Refusal at Trial

State v. Schirmang, Nos. 96-2008-CR and 96-2630-CR (filed 17 April 1997) (ordered published 27 May 1997)

The defendant was arrested for driving while under the influence of an intoxicant (OWI). He contended that the information he was given prior to his refusing to take a chemical intoxication test was inadequate under the implied consent law. (See Wis. Stat. § 343.305). As part of the implied consent admonition the officer read from an outdated form indicating that if the defendant had two or more prior alcohol-related convictions, suspensions or revocations "within a five-year period," a motor vehicle owned by him may be equipped with an ignition interlock device, immobilized or seized and forfeited. This information was incorrect because, prior to the defendant's arrest, the statute was changed to provide that OWI penalties include equipping the operator's car with an ignition interlock device, immobilizing or seizing it, if the driver has had two or more prior OWI convictions within the last 10 years. At the defendant's refusal hearing it was stipulated that he had two prior OWI convictions, one within the past five years and the other within the past l0 years. Based on undisputed evidence, the trial court found that the defendant had not received proper warnings under the implied consent law but concluded that this was a "technical violation" and therefore found that the refusal was unlawful. It revoked the defendant's operating privilege for three years.

Following the refusal hearing, a trial was held on the OWI charge. The state introduced evidence of the defendant's refusal, over his objection. The jury returned a guilty verdict.

The court of appeals, in a decision authored by Judge Roggensack, vacated the implied consent revocation but affirmed the OWI conviction. It agreed with the defendant that there was not substantial compliance in his case with the implied consent law when, as here, the penalties which actually would affect the driver, given his driving record, were misstated. Thus, the order revoking his license for an implied consent violation was vacated.

With respect to the OWI trial, the court of appeals concluded that it was a violation of the defendant's due process rights to admit the evidence of his refusal to take a chemical test when there was not substantial compliance with the implied consent law. However, given the overwhelming evidence that was admitted in support of the OWI offense, the court concluded that there was not a reasonable possibility that the admission of the refusal to take a chemical test contributed to the conviction. The error of admitting the refusal evidence was harmless and, therefore, the OWI conviction was confirmed.

Open Records Law

Excessive and Burdensome Requests - Denial of Access

Schopper v. Gehring, No. 96-2782 (filed 15 April 1997) (ordered published 27 May 1997)

The plaintiff appealed an order dismissing his complaint filed under the open records law seeking to obtain a three-hour interval of 911 calls recorded by the local sheriff's department. In a decision authored by Judge Myse, the court of appeals affirmed.

The plaintiff was arrested for a traffic violation on Nov. 29, 1995. He requested a copy of the 911 calls received by the local sheriff's department over a three-hour period on the night of his arrest. Because the 911 calls were recorded on 60 different channels, the sheriff responded that the plaintiff's request was too broad and that he would have to narrow or clarify the scope of his request before it could be acted upon. The sheriff's letter requested that the plaintiff identify specific times of the transmissions he was seeking or that he identify a specific incident to which the transmissions would relate. Despite the sheriff's letter that the plaintiff limit or clarify his request, no modification of the initially filed request was ever made. When the sheriff failed to provide the requested information, the plaintiff filed a civil suit seeking an order compelling the release of the information under the open records law.

The court of appeals began its analysis of the circuit court's dismissal of the plaintiff's lawsuit by noting that the parties did not raise a question as to whether the 911 tapes recorded by the sheriff's department were subject to an open records request. Because the issue was not raised, the court did not address it.

Turning to the evidence, the court found that it was undisputed that the 911 tapes in the county in question were made from 60 channels of transmissions. It also was undisputed that the plaintiff requested a log of each transmission detailing the time and the order in which the transmissions were received and three hours of 911 transmissions received during specified hours on the date of the defendant's arrest. This request would have required a transcription of 180 hours of tape, preparation of the requested log and the copying of 180 hours of tape.

The appellate court agreed that to require a custodian of a record to copy 180 hours of tape and create a log to identify the time and order in which the transmissions were received represents a burden far beyond that which may reasonably be requested of a custodian of a public record under the open records law. "A request for a record without a reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request." See Wis. Stat. § 19.35(1)(h).
Said the court, while this state favors the opening of public records to public scrutiny, we may not in furtherance of this policy create a system that would so burden the records custodian that the normal functioning of the office would be severely impaired. Here, the plaintiff's request was far in excess of that which was necessary for his announced purpose. Because he could reasonably have limited his request but failed to do so, and because the request placed an unreasonable burden upon the custodian in preparing the documents necessary to fulfill the request, the court of appeals concluded that the circuit judge did not err in finding the request to be so overbroad as to be inadequate under the open records law. Accordingly, the trial judge properly dismissed the complaint.

Pupil Records - Statutory Exemption from Public Access

State ex rel. Blum v. Johnson Creek Board of Education, No. 96-0758 (filed 6 March 1997) (ordered published 29 April 1997)

The petitioner made an open records request for various interim grades that had been given to herself and another student with whom she had been in academic competition for an award. Although the name of the other student was not revealed in the open records request, there was no question but that the identity of that other student was known to the petitioner and could have been discovered by anyone. The Board of Education denied the request, citing administrative staff burdens in tabulating the requested material as the reason. The petitioner then filed a writ of mandamus. The circuit court issued a memorandum decision concluding that the requested items were not public records because they were not kept by an "authority," and further, even if they were public records, they were exempt from disclosure by the confidentiality provisions of section 118.125 of the Wisconsin Statutes.

In a decision authored by Judge Deininger, the court of appeals affirmed. It disagreed with the circuit court that the interim grades recorded by teachers are not kept by an "authority" under the open records statute. The petitioner argued that since an "authority," such as the Board, must act through its officers and employees, documents that otherwise fit the definition of "records" are "kept" by an authority whenever they are in the possession of an officer or employee who falls under the supervision of the "authority." The appellate court agreed. However, it also concluded that the requested grades were pupil records exempt from disclosure under the open records law. Section 19.36(1) of the open records statute provides that "any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure" under the open records statute. The requested interim grades were pupil records exempted from disclosure under section 19.36(1) by the clear statutory exception for pupil records set forth in section 118.125 of the Wisconsin Statutes.

The petitioner argued that since the Board failed to specify any cognizable grounds when it denied access to the information requested, the writ of mandamus should have been issued even if the denial was justifiable. The court of appeals disagreed. It recognized that in Beckon v. Emery, 36 Wis. 2d 510, 153 N.W.2d 501 (1967), the court held that an authority's failure to sufficiently specify reasons for withholding information automatically mandates that access be ordered. This case was held to be distinguishable from the present litigation because it is applicable only when the denial is justified by public policy considerations that outweigh the public policy favoring access to the records. The rule does not, however, compel production of records whose confidentiality is expressly guaranteed by statute, such as the pupil records involved in this case. When such a specific statutory exemption exists, there is no need for a custodian to weigh competing public interests. Said the court, the Legislature has already done so. Accordingly, since the Board's denial of access was justified because the information sought is exempted by section 118.125, the Board's failure to specifically cite the statutory exemption in its denial did not preclude the court of appeals, or the circuit court, from determining whether the Board was authorized to deny the request.

Judge Dykman filed a dissenting opinion.

Paternity

Past Child Support - "Awareness" of Paternity

M.L. v. L.D., No. 94-3050 (filed 29 April 1997) (ordered published 27 May 1997)

Brad brought a paternity action against his putative father, who admitted paternity. The parties stipulated that the father had no knowledge of Brad's existence for the first 15 years of his life. The trial judge ordered the father to pay $500 monthly for future support, subject to modification should "Brad's academic performance and attitude warrant." The judge refused to grant past support based on "fairness" and a constitutional bar against the ex post facto application of section 767.51(4) of the Wisconsin Statutes.

The court of appeals, in an opinion written by Judge Schudson, affirmed in part and reversed in part. Section 767.51(4) makes fathers liable for past child support regardless of whether they know about the child's existence. Nor did the statute offend the constitutional bar against ex post facto laws because it was not "penal" in nature. The trial judge also erred in setting past child support by considering an impermissible factor - the father's lack of knowledge of the son's existence. Judge Schudson explained: "If [the father's] lack of knowledge and resulting inability to visit and provide for Brad could form a basis for deviation, the reach of sec. 767.51(4), Stats., to the entire 'period after the birth of the child' could be limited in a manner that would be inconsistent with sec. 767.51(4)."

The court also concluded that the trial judge erred in making the following determinations: 1) that marital property law principles apply to the determination of base income when setting child support (the judge deducted one-half of the father's adjusted gross income); 2) that depreciation values should not be included in determining the father's income; and 3) "in determining child support with the expectation that it could modify the order after Brad reached adulthood to account for his college costs."

Property

Conveyances - Breach of Warranty of Title - Measure of Damages

Schorsch v. Blader, No. 96-1220 (filed 6 March 1997) (ordered published 29 April 1997)

In 1985 the plaintiffs purchased a schoolhouse and 1.8 acres of land from a school district. The school district represented to the plaintiffs that it held clear title to the real estate and signed a warranty deed transferring the property to the plaintiffs. The plaintiffs enjoyed full use of the real estate for many years.

In 1993 the plaintiffs agreed to sell the property to a third party. However, the purchaser refused to close when it discovered that three persons (the Bladers) held title to 0.8 of an acre of the property. The Blader portion of the land included the real estate's only access to a state highway. The plaintiffs brought an action against the Bladers for adverse possession of that 0.8 of an acre and against the school district for misrepresentation and breach of warranty. On motions for summary judgment, the plaintiffs lost on the adverse possession claim and prevailed on the breach of warranty claim.

A trial was held on damages. The plaintiffs argued that section 706.10(5) of the Wisconsin Statutes changed the former common law measure of damages for breach of title warranty into contract damages. Therefore, lost profits and consequential damages were appropriate. The circuit court agreed.

Before the court of appeals the issue was whether section 706.10 supersedes the common law measure of damages for breach of title warranty. At common law damages for breach of warranty of seisin are the consideration paid for the land plus interest thereon from the date of payment. When title fails as to only part of the land conveyed, the grantee may recover such a fractional part of the whole consideration paid as the value at the time of the purchase of the piece to which the title fails, relative to the whole purchase price, plus interest.

The plaintiffs argued that the common law measure of damages for a breach of warranty of seisin is irrelevant, because it has been superseded by section 706.10(5), which they asserted requires the use of the common law of damages for breach of contract. In a decision authored by Judge Roggensack, the court of appeals disagreed. The appellate court concluded that the common law measure of damages for breach of warranty of title was not changed by the statute cited above. Accordingly, the plaintiffs were entitled to recover the portion of the purchase price which they proved to be attributable to the 0.8 of an acre of land to which title failed, plus statutory interest on that amount from the date of purchase. This recovery includes the intrinsic value of the 0.8 of an acre, as well as an extrinsic value the trial court finds it provided to the parcel on which good title was conveyed, on the date of purchase.

Torts

Medical Malpractice - Negligent Infliction of Emotional Distress - Adult Children

Ziulkowski v. Nierengarten, No. 95-1708 (filed 8 April 1997) (ordered published 27 May 1997)

Two adult children brought a claim for negligent infliction of emotional distress against a doctor who, they alleged, caused their mother's death as a result of malpractice. The circuit court dismissed the claim.

The court of appeals, in an opinion written by Judge Wedemeyer, affirmed. The court held that nothing in Bowen v. Lumbermens Mutual Cas. Co., 183 Wis. 2d 627 (1994), which involved a mother who witnessed her son's fatal injury, suggested that such claims extended to medical malpractice actions. Moreover, the court was satisfied that the "statutory framework" of Chapter 655 of the Wisconsin Statutes governing medical malpractice, excluded such claims on behalf of adult children.

Survival Claims - Statute of Limitations

Lord v. Hubbell Inc., No. 96-1031 (filed 10 April 1997) (ordered published 27 May 1997)

Peter Lord died from an electrical shock he received from equipment manufactured by the defendant. Lord's estate brought a claim for personal injuries and his two children brought a wrongful death claim. The circuit court dismissed both claims because of improper service but without prejudice to refile the claims. The defendants appealed on the ground that the estate's survival claim was barred by the statute of limitations and therefore should have been dismissed with prejudice.

The court of appeals, in an opinion written by Judge Vergeront, reversed. Although the opinion includes several other issues, the primary contention concerned the statute of limitations. First, the court applied well-established law in concluding that the defendant was not equitably estopped from raising the statute of limitations defense. Second, the court held that the statute of limitations governing the estate's survival claim, section 893.18(2) of the Wisconsin Statutes, was not tolled because the beneficiaries were the two minor children. Although there was no case on point, the court's discussion turned on Korth v. American Family Ins. Co., 115 Wis. 2d 326 (1983). Public policy favored applying the three-year statute of limitations to the estate's survival claim. For example, tolling the statute would not necessarily result in a single "piece" of litigation, nor was it compelled by the minors' interests. In the end, the plaintiffs' arguments for tolling were based on "the particular configuration of the estate's beneficiaries and the wrongful death claimants in this case," which did not provide a "reasoned and predictable basis for interpreting the same statutes when that configuration varies."

Wisconsin Lawyer