Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Civil Procedure | Consumers| Corporation Law |
| Criminal Law | Criminal Procedure |
Employee Benefits |
| Estate Planning | Medical Assistance
| Medical Records |
| Torts | Zoning |
Civil Procedure
Service of Process - Timeliness - Foreign Corporations -
Hague Convention
The Conservatorship of Prom
v. Sumitomo Rubber Industries Ltd., No. 98-0938 (filed 10 Feb.
1999) (ordered published 31 March 1999)
Craig Prom was horribly injured in a motorcycle accident. His
conservator brought suit against the defendant, SRI, claiming that it
had defectively manufactured a tire that caused the injuries. Prom
bought the motorcycle in Wisconsin. SRI had manufactured the tire in
Japan and sold it to Kawasaki, which placed it on the motorcycle in
Japan before the bike was shipped to Wisconsin. Prom filed the first
summons and complaint with the Secretary of State on May 10, 1989,
pursuant to section
180.847(4) of the Wisconsin Statutes. When SRI objected on grounds
of lack of personal jurisdiction, Prom filed an amended summons and
complaint on June 19, 1989, and attempted service of the amended summons
and complaint according to the Hague Convention. The circuit court
eventually dismissed for lack of personal jurisdiction.
The court of appeals, in an opinion written by Judge Anderson,
affirmed. Prom failed to achieve service of process under the Hague
Convention. The court held that "art. 15 [of the convention] governs
default judgments and does not confer a six-month time period for
service of process on foreign defendants. Additionally, we conclude that
art. 10 does not permit service of process by mail. Furthermore, without
any evidence in the record that Prom accompanied the mailing of the
documents with publication, we deem that service was insufficient per sec.
801.11(5)(b), Stats." Nor did service on the Secretary of State
confer personal jurisdiction. The record supported the trial judge's
determination that SRI did not "transact business" in Wisconsin and
therefore lacked sufficient contacts to support jurisdiction according
to section 180.847(4).
Consumers
Home Improvement Contracts - Consumer Loans - Assignees
Jackson v. DeWitt,
No. 98-0493 (filed 24 Feb. 1999) (ordered published 31 March 1999)
Jackson contracted with DeWitt to construct a lap pool. He paid
DeWitt $11,400 in cash and financed the remainder through a Retail
Installment Security Agreement (RISA). Associates Financial Services Co.
(Associates) provided DeWitt with the RISA forms. DeWitt assigned the
RISA to Associates after Jackson signed the papers. Jackson paid off the
RISA before the pool was completed.
When the pool leaked, Jackson had it removed and he brought this
action against Associates and DeWitt. Jackson alleged that Associates
(through DeWitt) violated Wis. Admin. Code chapter ATCP 110 and that he
was entitled to assert all valid claims against Associates in seeking
the return of his money.
The circuit court granted summary judgment in Associates' favor. It
ruled that the RISA was an "interlocking consumer loan" subject to section
422.408 of the Wisconsin Statutes and Associates was liable only for
any amount still due. Since Jackson had paid the loan, Associates was
not liable. Finally, the judge found that the RISA was not a negotiable
instrument and thus Jackson could not state a claim under ATCP
110.06.
The court of appeals, in an opinion written by Judge Anderson,
reversed. Initially, it agreed with the circuit court that the RISA was
not a negotiable instrument because it contained a condition (building a
pool) other than the payment of money. The RISA's nonnegotiability did
not, however, dictate the result reached by the trial judge.
"First, a commonsense reading of Wis. Adm. Code Sec. ATCP 110.06
substantiates that the regulation covers home improvement contracts and
is not limited to negotiable instruments. Second, public policy dictates
that consumer protection statutes and administrative rules must be read
in pari materia to achieve the goal of providing protection and remedies
to consumers. Third, [State v. Excel Management Servs. Inc.,
111 Wis. 2d 479 (1983)] teaches that an assignee of a nonnegotiable home
improvement contract takes the contract 'subject to all claims and
defenses of the buyer or his successor in interest.'"
In short, Jackson's full payment of the loan prior to discovering the
contract breach did not impede his right to proceed against the
assignee, Associates.
Corporation Law
Direct Actions - Derivative Actions - SLCs -
Corporation's Best Interest
Einhorn v. Culea,
No. 97-3592 (filed 24 Feb. 1999) (ordered published 31 March 1999)
Einhorn was a director and minority shareholder (about 22 percent) in
Northern Labs. In 1992 the corporation voted that Culea, the majority
shareholder and the president, should receive a hefty "retroactive
compensation bonus." In 1993 Einhorn filed a direct action against
Culea, alleging a willful breach of fiduciary duties and self-dealing
regarding the compensation bonus, which had allegedly "diluted"
Einhorn's ownership percentage. Einhorn later amended the complaint to
state a derivative action at the direction of the circuit court.
After much wrangling, a special litigation committee (SLC) was
appointed and voted that continuation of the suit was not in the
corporation's best interest. The court held a seven-day bench trial on
the SLC's independence and found that the committee was independent and
had appealed the dismissal of his derivative action.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. First, Einhorn's claim could be maintained only as a
derivative action, not a direct action. Einhorn's alleged damages were
"derivative of Culea's conduct against the corporation," namely, Culea's
alleged wrongful misappropriation of corporate assets for personal
use.
Second, the SLC's determination was lawful. The SLC's creation was
not "tainted" because its use was recommended by the corporation's
counsel. Although its creation "could have been better documented," the
totality of circumstances showed that only "independent" directors voted
on its creation. The court next assessed the independence of the SLC
itself. Einhorn complained that the SLC consisted of Culea's "friends or
close business associates." Mere status alone, however, did not
demonstrate that the trial judge had abused his discretion in finding
that the committee, despite its affinity to Culea, acted in good faith
and independently of Culea. The court also addressed the role of the
corporation's attorney in the SLC's creation and conduct, finding no
impropriety.
Criminal Law
Interference With Child Custody - State Jurisdiction When
Concealment of Child Takes Place Out of State
State v. Inglin,
No. 97-3091-CR (filed 16 February 1999) (ordered published 31 March
1999)
Pursuant to a divorce judgment, the defendant and his ex-wife had
joint custody of their son. The son's "primary physical placement" was
with his mother and his "extensive physical placement" was with the
defendant. In 1995, when the boy was 4 years old, the defendant and his
ex-wife agreed that the boy would go with his father for what was to
have been a 10-day camping trip to Colorado. Instead of taking the child
to Colorado, the defendant took him to Canada. In fact, as the defendant
conceded at the trial, soon after picking up the boy for the camping
trip, he decided to keep him permanently.
The evidence established that the defendant had made extensive
arrangements to accomplish that goal even before picking up his son.
Approximately two months later, Canadian law enforcement authorities
found the defendant and his son living in British Columbia. The
defendant was thereafter convicted, following a jury trial, of violating
two subsections of section
948.31 of the Wisconsin Statutes, which is the Interference With
Child Custody statute.
Section 948.31(1)(b) makes it a felony to intentionally cause a child
to leave, take a child away, or withhold a child for more than 12 hours
beyond the court-approved period of physical placement or visitation
period from a legal custodian with intent to deprive the custodian of
his or her custody rights without the consent of the custodian. The
defendant was charged with the "withholding" violation, but through
inadvertence (as to which there was no objection by the parties), the
court instructed the jury on the "taking a child away" theory. Thus, on
appeal the court focused on whether the evidence was sufficient to
support the verdict on the "take away" charge.
The defendant argued that the taking of the child was with the
mother's consent and therefore not a violation of the statute. The state
countered that, because the defendant deceived his ex-wife about his
intentions, and because the mother consented only to the defendant
taking the boy for a vacation, the deceit prompted the mother's
permission and thus the evidence was sufficient to support the jury's
"take away" verdict.
In a decision authored by Judge Schudson, the court of appeals
agreed. It reached this conclusion based upon the definition of
nonconsent found in section
939.22(48) of the Wisconsin Statutes, which provides among other
things that the term "without consent" includes a consent given because
the victim does not understand the nature of the thing to which the
victim consents, either by reason of ignorance or a mistake of fact or
of law other than criminal law, or by reason of youth or defective
mental condition, whether permanent or temporary. In this case the
mother consented to the defendant taking away the boy only because of
her understanding that the boy was being taken on a brief camping trip
to Colorado after which he would be returned to her. The mother remained
in ignorance of the defendant's true intentions only because of his
deceit, and thus her agreement allowing the defendant to take the boy
away was "without consent."
The court cautioned that its opinion should not be read to suggest
that, in a dispute between two custodial parents, any and every
deviation from an agreed-upon visitation or vacation plan would
constitute a nonconsensual "taking away" under the statute. After all,
the statute provides that, to be guilty of a violation, an offender must
act "with intent to deprive the other custodian of his or her custody
rights." Inevitably, countless occasions arise where one custodial
parent, responding to unanticipated circumstances, reasonably deviates
from agreed-upon plans without violating the criminal law. Here,
however, from the moment of his "taking away" the boy, the defendant
never intended to do what he had agreed to do: He never intended to
return the boy to his mother. Therefore, although an offense like this
one would more logically be prosecuted on a "withholding" rather than a
"taking away" theory, the evidence was sufficient to support the
conviction.
The statute also provides that it is a felony to "intentionally
conceal a child from the child's other parent." The information charged
that during the two-month period when the boy was away, the defendant
intentionally concealed the child from his mother and identifies the
location of the offense as being Milwaukee County, Wisconsin. The
defendant argued that because it was uncontroverted that he and the boy
were outside the state of Wisconsin during the entire time charged in
this count, the concealment occurred wholly outside the state and
therefore Wisconsin lacked territorial jurisdiction over that
offense.
The appellate court disagreed. Section 939.03(1)(c) of the Wisconsin
Statutes provides that a person is subject to prosecution and punishment
under the law of Wisconsin if while out of this state, the person does
an act with intent that it cause in this state a consequence set forth
in a section defining a crime. Every day the defendant kept the boy in
Canada, he prevented the boy's lawful return to his mother, and he made
more difficult the discovery of the boy by his mother. Therefore, for
purposes of jurisdictional analysis, the defendant's concealment of the
boy in Canada was inseparable from the consequences of that concealment
in Wisconsin. Therefore, as to this count, the state had
jurisdiction.
Criminal Procedure
Delayed Charging of Juvenile Offenders - Adult Court Jurisdiction -
Becker Hearings - Waiver by Guilty Plea
State v.
Schroeder, No. 98-1420 (filed 4 Feb. 1999) (ordered published
31 March 1999)
The defendant appealed from an order that denied his post-conviction
motion challenging his conviction and sentence on two charges of sexual
assault. The charges involved incidences occurring before his 18th
birthday, but the criminal complaint was not filed until after he turned
18. [This case arose prior to changes in the Juvenile Justice Code
which, among other things, lowered the pertinent ages for children
subject to the code and to waiver petitions.] The defendant pleaded
guilty to both counts. He never requested a hearing under State v.
Becker, 74 Wis. 675, 247 N.W.2d 495 (1976), prior to entering his
guilty pleas. At a Becker hearing the state would have had to establish
that it did not intentionally delay the filing of the criminal complaint
until after the defendant's 18th birthday.
On appeal the defendant argued that the failure to hold a
Becker hearing affected the adult court's subject matter
jurisdiction and that this jurisdictional defect was not waived even
though he never requested such a hearing before entering his pleas. In a
decision authored by Judge Vergeront, the court of appeals concluded
that a Becker hearing addresses a potential constitutional
violation, not the court's subject matter jurisdiction, and that the
defendant waived the right to request a Becker hearing when he
entered his guilty pleas.
Restitution - Accident Victims - Releases - Setoffs
State v. Walters,
No. 98-0828-CR (filed 25 Feb. 1999) (ordered published 31 March
1999)
When driving her car while intoxicated, Walters rear-ended a vehicle
driven by Olivas. Walters was charged with causing injury by intoxicated
user and related offenses. Her liability insurer paid Olivas the $25,000
limit in exchange for a release of all claims and damages. Walters was
later convicted for causing injury while intoxicated. At her sentencing
hearing, the judge determined that Olivas's release did not preclude
restitution in the criminal proceedings. The court found more than
$40,000 in special damages, including medical expenses and lost wages.
The court also found that Walters had the ability to pay $24,000 in
restitution and refused to set off this amount against the release.
The court of appeals affirmed in an opinion written by Judge
Roggensack that interprets the restitution statutes in light of the
extant case law. First, the court held that on this record the defense
of "accord and satisfaction" did not preclude the restitution order. A
crime victim has no "independent claim" for restitution that he or she
can release. The remedy, rather, belongs to the state.
The court also considered a second defense, "setoff." Under the
statutes a criminal court cannot order restitution for "general
damages"; rather, it is limited to special damages proved in the record.
Clearly, amounts paid as criminal restitution can be set off against a
later civil judgment, but no appellate case has ever addressed the
opposite scenario: the setting off of civil damages against the criminal
restitution order. The court of appeals held that the "legislative
objectives will be best served by applying any setoff which a circuit
court determines is appropriate to the total amount of special damages
which the victim has sustained."
Moreover, the court imposed on the defendant the burden of proving
what part, if any, of the civil damages (here $25,000) was made in
payment for special damages and thus was entitled to setoff in the
criminal case. On this record the trial judge refused to make a setoff
because the testimony revealed "general damages of an indeterminate
amount," rendering it "unfair to make a setoff of the $25,000 settlement
entirely against Olivas's special damages."
Search and Seizure - Warrantless Entry - Consent - Exigent
Circumstances - Attenuation
State v. Richter,
No. 98-1332-CR (filed 23 Feb. 1999) (ordered published 31 March
1999)
The state appealed a pretrial order suppressing evidence collected
during the warrantless search of a trailer home. Police went to the
trailer park when a caller claimed that an intruder was breaking into a
trailer. The intruder was then observed running toward the defendant's
trailer. An officer awakened two men who had been sleeping in the
defendant's trailer. He then entered the trailer and awoke the defendant
who was sleeping on a sofa. The defendant gave the officer permission to
search for the intruder. They later found the intruder as well as drugs
and drug paraphernalia linked to the defendant.
The court of appeals, in an opinion written by Judge Myse, affirmed
the suppression order. First, the entry was illegal. Police had no
warrant to enter the trailer and the prosecution failed to meet its
burden showing exigent circumstances or a "hot pursuit" justifying a
warrantless entry. Upon arriving at the scene, the officer learned that
the suspected "burglary" was no more than an "unlawful entry" and
involved no threat of harm. In short, the officer lacked any reasonable
belief that "a grave threat to the safety of others existed." Moreover,
the record failed to support any tenable theory of "hot pursuit," the
application of the "emergency doctrine," or the "community caretaker
doctrine," the latter rule requiring a "total divorce" from any pretense
of criminal investigation.
The court next addressed whether the defendant's consent was
sufficiently attenuated from the illegal entry. The temporal break
between the illegal entry and the consent was virtually nonexistent; the
one immediately followed the other. Nor did the intervening
circumstances sufficiently "diminish the unlawful nature" of the entry.
The court observed that the defendant was never told that the officer
lacked a warrant or that he did not have to consent to the search.
Finally, although this was hardly the most extreme example of official
misconduct, there being no force, tricks, or cajolery, it was
nevertheless "sufficiently purposeful" and thus failed to break the link
between the illegality and the seizure.
Employee Benefits
Health-care Retirement Benefits - Change in Benefits of Retired
Employees Negotiated by Union Representing Current Employees
Roth v. City of
Glendale, No. 97-3467 (filed 23 Feb. 1999) (ordered published 31
March 1999)
Plaintiffs are retired employees of the City of Glendale, most of
whom had been members of a collective bargaining unit. They were covered
by a series of collective bargaining agreements spanning the years 1972
to 1997. Through 1992 the various contracts required the city to pay the
entire premium for health-care benefits for retirees. In 1992 that
provision was renegotiated with the union to provide for a change in the
formula for health-care coverage. The retirees were not a party to these
negotiations.
After the change was negotiated, the retirees brought suit against
the city, claiming they had a vested interest in the retirement benefits
that were established under the various contracts in operation when they
each retired and that the 1992 change was being improperly applied to
them.
The circuit court granted summary judgment to the city, relying on
the rule of law found in Senn v. United Dominion Indus. Inc.,
951 F.2d 806 (7th Cir. 1992), which states that retirees have no vested
right to benefits beyond the expiration of the benefit agreement where
the agreement does not specifically provide otherwise. In a decision
authored by Judge Curley, the court of appeals affirmed.
The first issue considered by the appellate court was the contention
of the retirees that because they are not part of the current bargaining
unit and the labor union does not represent retired persons, the trial
court erred in finding that the city could lawfully negotiate with the
union for a change in retiree benefits. The court of appeals disagreed.
Under Rosetto v.
Pabst Brewing Company, 128 F.3d 538 (7th Cir. 1997), a union
has no duty to represent retirees, but retirees are free to make the
union their agent if they so choose. In this case the retirees did not
affirmatively agree to have the union represent them, but they accepted
the terms of other collective bargaining agreements negotiated by the
union after their retirement, and this acceptance implied that they
consented to have the union negotiate on their behalf. Thus, the court
concluded that the retirees implicitly agreed to allow the union to
represent them and the trial court's finding that the city could
properly negotiate changes in retiree benefits with the union was
correct, both because the retirees were not entitled to representation
in such negotiations and, in any event, the union was given the implicit
authority to represent the retirees by their acceptance of such previous
negotiation.
The appellate court further concluded that because none of the
collective bargaining agreements specifically provided for the vesting
of health insurance benefits and none provides that the same level of
benefits would continue until the death of the retiree, and because the
retirees can point to no other provisions in any of the collective
bargaining agreements that would form a basis for a lifetime benefits
claim, the court of appeals concluded that the circuit judge properly
granted summary judgment to the city.
Judge Fine filed a dissenting opinion.
Estate Planning
Wills - Anti-lapse Statute
Firehammer v.
Marchant, No. 98-0586 (filed 20 Jan. 1999) (ordered published
31 March 1999)
The testator in this case died in 1996. In his will he split the
residue of his estate into seven shares. One share went to each of his
two daughters, one to his sister, and one to a niece. The other three
were placed in trust for his grandchildren, to be distributed to them
when the youngest reaches age 40.
Six days after the testator died, one of his daughters also died. The
will has a provision that if any beneficiary dies within five months
after the testator's death, "any interest which would have passed to
said beneficiary under other provisions of this Will are to be disposed
of according to the plan of distribution which would have been effective
... if such beneficiary had predeceased me."
The personal representative distributed the deceased daughter's share
to her son (appellant Firehammer) pursuant to Wisconsin's anti-lapse
statute. See Wis. Stat. § 853.27 (1995-96). [In footnote
the court of appeals noted that the probate code of Wisconsin has
recently been revised and that, though the revisions were not in effect
at the time of this case, the result would be the same under the new
anti-lapse statute. See Wis. Stat. §
854.06 (1997-98).]
The testator's surviving daughter filed a motion seeking to prevent
this distribution. The circuit court determined that it was the
testator's intent to split the share of his deceased daughter among the
surviving residual beneficiaries. In a decision authored by Judge Brown,
the court of appeals reversed.
The court's task in construing a will is to determine the testator's
intent and the best evidence of this is the language of the document
itself. When the will is unambiguous, there is no need to look any
further to ascertain the testator's intent, as it is clearly stated in
the will. In this case the testator's will contained the clause quoted
above. The appellate court concluded that there is no ambiguity in that
clause. The rule of law in Wisconsin is that, if a beneficiary
predeceases a testator, the anti-lapse statute works to give the
beneficiary's share to the beneficiary's issue, not to the surviving
beneficiaries, unless a contrary intent is clearly established. In this
case, if the testator had intended that a deceased beneficiary's share
be returned to the residue to be split six ways, he would have said so.
In the absence of a clear contrary intent by the testator, the
anti-lapse statute controls.
Medical Assistance
Medical Assistance Recovery Program - Hardship Waivers
Gorchals v. Wisconsin Dept.
of Health and Family Services, No. 98-0212 (filed 27 Jan. 1999)
(ordered published 23 Feb. 1999).
This case concerns the application of the hardship criteria in the
hardship waiver provision of the medical assistance recovery program.
The program enables the Wisconsin Department of Health and Family
Services to recoup medical assistance payments from the estates of
deceased medical assistance recipients. Under the waiver allowance,
however, the department must forego its claim against the estate if the
beneficiaries of the estate meet certain criteria.
In this case Shirley and James Gorchals are the surviving sister and
nephew of John Hawkinson, who received medical assistance while in a
nursing home. In 1994 the Department of Health and Family Services
obtained a lien on Hawkinson's home pursuant to section
49.496(2)of the Wisconsin Statutes. Hawkinson died in 1996 and
Shirley and James were the beneficiaries of his will. The principal
asset of his estate was his home, where Shirley and James have lived
since 1953 and 1964, respectively. Both Shirley and James are recipients
of Supplemental Security Income (SSI), medical assistance, and food
stamps.
In 1996 the department filed a claim against Hawkinson's estate. In
response, Shirley and James requested a hardship waiver of this claim,
pursuant to section 49.496(6m) of the Wisconsin Statutes and Wis. Admin.
Code section HFS
108.02(12). The latter provides that the department shall waive its
claim if the beneficiary or heir of a decedent meets one of the criteria
for a hardship waiver. Among the situations constituting an undue
hardship on the waiver applicant is that the applicant would become or
remain eligible for SSI, food stamps, and medical assistance if the
department pursued its claims. The department denied the waiver.
In a decision authored by Judge Brown, the court concluded that
Shirley and James should have been granted a waiver under the plain
meaning of the administrative rule cited above. The stipulated facts in
the case stated that at all times relevant to this case, Shirley and
James have been and will remain recipients of SSI, medical assistance,
and food stamps. Since they will remain eligible if the department
pursues its claim, they satisfy the hardship criterion and should have
been granted a waiver.
In so holding, the court rejected the department's interpretation
that hardship exists under this criterion only when an inheritance
normally would allow a beneficiary to get off SSI, food stamps, or
medical assistance, but the department's claim would instead cause the
beneficiary to remain on such governmental entitlement programs. The
court declined to rewrite the administrative rule in question. If the
department intends the rule to include such a "but for" test, it is free
to rewrite the rule. But as it stands, the rule is clear. It mandates
only a determination of eligibility - not causation.
Medical Records
Pharmacists - Wis. Stat. Section 146.84 - Mistake of Law
Hannigan v. Sundby Pharmacy
Inc., No. 98-1673 (filed 25 Feb. 1999) (ordered published 31
March 1999)
As a result of a personal injury action, Hannigan authorized the
disclosure of some of his medical records to his employer's attorneys.
The attorneys requested and received records maintained by Sundby
Pharmacy. Hannigan asserted that he had not authorized the release of
the pharmacy's records and alleged that the lawyers had used "false
pretenses." When the pharmacy failed to provide information about the
release of the records, Hannigan alleged that it had violated his rights
under section
146.83 of the Wisconsin Statutes "by failing to provide him with a
statement paraphrasing his rights to access his medical records and by
failing to maintain proper information regarding requests for his
medical records." The trial judge granted summary judgment to Sundby
Pharmacy based on the finding that the violations were not "knowing or
willful" because the pharmacist was ignorant of section 146.83.
The court of appeals, in an opinion written by Judge Deininger,
reversed and remanded the case. It was undisputed that the pharmacy had
violated sections 146.83(2) and (3). Carefully considering the statute's
prolix legislative history, the court held that "licensed pharmacists
are charged with the knowledge of the statutes and regulations governing
the practice of their profession." The court also determined that the
pharmacy's conduct was not "apparently innocent" because "[a] reasonable
pharmacist should know that the release of confidential prescription
records poses a risk of significant harm to a patient, and that release
of prescription records are likely a subject of regulation." Finally, if
mistake of law was a recognized defense, it might undermine the scheme
of private enforcement recognized by the Legislature.
In sum "the statute imposes liability only if the violation is
'willful' in the sense that the act that caused the violation was
intentional and voluntary, rather than inadvertent or coerced." The
court remanded the case for trial because disputed issues of fact
remained.
Torts
Statute of Limitations - Duty - Negligent Contract Performance
Atkinson v. Everbrite
Inc., No. 98-1806 (filed 4 Feb. 1999) (ordered published 31
March 1999)
Harry Atkinson worked for Everbrite from 1969 to 1989, when he became
totally disabled. Atkinson had a group life insurance policy on which
Everbrite paid the premiums. The policy further provided that should the
insured become disabled before age 65, all premiums would be waived
provided the insurer received proof of disability between the sixth and
twelfth months of the disability. Atkinson became disabled in 1990. At
no time did Everbrite ever send the waiver of premium forms to the
Atkinsons or notify the insurer as required by the policy. Atkinson died
in 1992. Mrs. Atkinson began this suit in her dual capacity as wife and
special administrator in 1998. She claimed that Everbrite was liable in
tort for the loss of insurance coverage. The trial court dismissed the
tort claim because Everbrite had no duty to provide the forms under tort
law.
The court of appeals, in an opinion written by Judge Deininger,
affirmed. The sole issue was whether Everbrite's duty sounded in tort or
contract. The plaintiff asserted the tort theory because the statute of
limitations had run on the contract. The court of appeals rejected her
argument that Everbrite had "gratuitously assumed" the duty under tort
law. "The obligation to provide Mr. Atkinson with waiver of premium
forms, if Everbrite was indeed so obligated, was part of its obligation
to compensate Mr. Atkinson for his services, and is therefore not a duty
Everbrite assumed independent of its employment contract with Atkinson."
In short, the law rejects "a claim in tort arising from the negligent
performance of a contract." Mrs. Atkinson's remedy was in contract, not
tort.
Zoning
Conditional Use Permits - Revocation by Boards of Adjustment
Bettendorf v. St. Croix
County Board of Adjustment, No. 98-2327 (filed 9 Feb. 1999)
(ordered published 31 March 1999)
A portion of land owned by the plaintiffs is used to operate a
trucking business. In 1990 the county board of adjustment approved,
without conditions, the plaintiffs' application for a truck repair shop
and transfer point. Conditions were apparently proposed regarding the
intensity of use of the premises, but the board of adjustment ultimately
issued the permit without them. The plaintiffs' adjoining property was
not subject to the conditional use permit and remained zoned as
agriculture/residential.
In 1996 the county zoning office notified the plaintiffs that
semi-trailers and employees were parking on the plaintiffs' land zoned
agriculture/residential as described above and that this violated the
county zoning ordinance. A year later the zoning office ordered the
plaintiffs to confine their truck repair and transfer point operations
to the parcel subject to the conditional use permit and to remove all
trucks, trailers, and other equipment from their property not subject to
the permit. The plaintiffs did not comply with this order to the zoning
office's satisfaction, and the board of adjustment then sought to revoke
the conditional use permit pursuant to the county's zoning code. After a
hearing the board added a condition to the permit by requiring the
plaintiffs to construct a fence around the commercially zoned premises.
It further ordered that failure to comply would result in the immediate
revocation of the conditional use permit.
The plaintiff sought certiorari review in the circuit court, which
affirmed the board's decision and set time limits for the construction
of the fence. This appeal followed.
The issue before the court of appeals was whether the board can add a
condition to or revoke a conditional use permit with no conditions
because the plaintiffs allegedly used their adjoining
agriculture/residential property improperly. In a decision authored by
Judge Hoover, the court answered in the negative. The local zoning code
provides that where a special exception use or a variance has been
approved subject to specified conditions and where the conditions are
not complied with, the board of adjustment may conduct a hearing. A
finding by the board of noncompliance with the conditions originally
imposed shall be grounds for revocation. In this case, however, the
permit was issued without any conditions. The court of appeals declined
to read into the permit any conditions the board discussed at the time
of permit application but chose not to incorporate.
The court noted that the county has other appropriate remedies in
this situation. It can, and recently did, commence an enforcement action
in connection with the adjoining parcel. That property is zoned
agriculture/residential; commercial activities are not permitted.
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.
Wisconsin
Lawyer
