Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J.
Hammer
| Attorney Fees | Attorneys | Civil Procedure | Criminal Law | Criminal Procedure | Disability Law | Evidence | Family Law | Insurance | Motor Vehicle Law | Nuisance | Real Property | Sexual Predator Law | State Government
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Attorney Fees
WEJA - "Market Rate" - "Special Factors"
Stern v. Wis. Dept. of Health
and Family Services, No. 98-1493 (filed 21 Oct. 1998) (ordered
published 18 Nov. 1998)
This case concerns the proper amount of attorney fees. The underlying
action involved a termination of a person's medical assistance benefits
by the DHFS without prior written notice. Under the Wisconsin Equal
Access to Justice Act (WEAJA) a successful plaintiff can recover
attorney fees at "market rate," not to exceed $75 per hour. Trial courts
can award higher amounts if "special factors" exist, such as an
unusually complex case.
In the trial court, the successful plaintiff argued for attorney fees
in excess of $75 per hour based on the complexity of the law relating to
Medicaid and Supplemental Security Income. In the alternative, the
plaintiff asked for a cost of living increase. The judge granted the
cost of living increase, using 1981 as the base year for calculating the
percentage increase.The judge did not address the special factor
increase.
The court of appeals, in an opinion written by Judge Brown, modified
the order. The court agreed with DHFS that the appropriate base year was
1985, not 1981. The trial judge used 1981 because it was the effective
year for the federal legislation on which the WEAJA was modeled. The
WEAJA, however, went into effect in 1985.The Legislature's intent was
that 1985 serve as the base year for determining cost of living
increases.
The court of appeals also addressed the "special factors" argument.
From its review of the undisputed facts of record, the court of appeals
held that the issues in this case were not unusually difficult - "it is
well established that notice is required before the termination of
public assistance benefits." Other cases might well present special
factors where they necessitate an "understanding of the complex
interaction between state and federal law."
Terminated Employees - Fiduciary Duty - Wage Claims - Wis. Stat.
chapter 109
Jacobson v. American Tool
Companies Inc., No. 97-2219 (filed 14 Oct. 1998) (ordered published
18 Nov. 1998)
In this case the plaintiff claimed that a company violated his
employment contract when it refused to pay his stock appreciation rights
after it terminated his employment. The circuit court awarded a judgment
in the plaintiff's favor.
The court of appeals, in an opinion written by Judge Anderson,
affirmed in a decision that addressed three issues. The first two issues
involved well-accepted principles of law as applied to the facts. First,
the credible evidence supported the trial court's finding that the
plaintiff was awarded the stock rights before he was terminated. Second,
the evidence also established that the plaintiff's actions, which
involved his dual role as corporate officer and employee, were "fair and
reasonable" and were not a breach of a fiduciary duty. Third, and most
significantly, the court of appeals agreed that the plaintiff was
entitled to attorney fees under chapter
109 of the Wisconsin Statutes. Although section 109.03(6) does not
specifically mention "attorney fees," the court concluded that they are
incorporated into the "expenses" permitted by the statute. Under
applicable precedent, the failure to award the plaintiff attorney fees
would leave him in a "significantly worse economic situation than when
he began his lawsuit." Such a reading undercuts the purpose of chapter
109, which is "to ensure that employees receive their full wages."
Attorneys
Settlements - Representing Multiple Parties - Ethical Duties -
"Crafty Lawyering"
Gustafson v. Physicians Ins.
Co., No. 97-3832 (filed 18 Nov. 1998) (ordered published 16 Dec.
1998)
The plaintiff alleged that he was damaged when several doctors
treated him for a cancer that he did not have. The plaintiff was
represented by an attorney who allegedly agreed to also represent the
interest of the subrogated health insurance carrier, MNIC, in the action
against the doctors and their malpractice insurer, Physicians Insurance
Co. (PIC). The plaintiff lost his claims at trial. In negotiations after
trial, the plaintiff agreed not to appeal if PIC waived its right to tax
costs against him. About a month later PIC submitted a proposed order
seeking attorneys fees and taxable costs against MNIC. Plaintiff's
counsel and MNIC disputed whether counsel had agreed to represent MNIC's
interests. The judge eventually entered the order against MNIC finding,
in part, that "MNIC did not have an attorney-client representation
agreement" with plaintiff's counsel.
Judge Anderson, writing for the court of appeals, reversed. First,
the court found that there was a contract for legal services between
plaintiff's counsel and MNIC. Telephone conversations, a letter, and
other circumstances demonstrated that counsel agreed to represent MNIC
at trial.The court also rejected the plaintiff counsel's argument that
his agreement was limited to "proving up" the plaintiff's medical
expenses at trial. Rather, counsel's obligation was to "represent MNIC's
subrogation interest and as its representative was required to complete
all actions."
The second issue concerned the adequacy of counsel's representation
on MNIC's behalf. Counsel was duty bound to represent both plaintiff and
MNIC. His agreement to waive plaintiff's right of appeal in exchange for
PIC's promise not to tax costs against the plaintiff "did not represent
MNIC's interests at all." Quite the contrary, it appeared that the
settlement "benefited one client at the expense of another."
Third, under these circumstances, the court held that "allowing PIC
to tax costs against MNIC 'would be drastically unfair.'" The court was
plainly troubled that "'crafty lawyering' was at play in the settlement
negotiations."
Finally, MNIC was not foreclosed from litigating costs because it had
failed to file a written waiver of its intent to be represented by
plaintiff's counsel pursuant to Wis. Stat. section
803.03(2)(b). More specifically, this "technical requirement" did
not bar MNIC's assertion that it had formed a representation agreement
with plaintiff's counsel.
Civil Procedure
Service of Process - Out-of-State Process Servers - Fundamental
Defect
Bendimez v. Neidermire, No.
98-0656 (filed 13 Oct. 1998) (ordered published 18 Nov. 1998)
The plaintiff served the Wisconsin defendants by an out-of-state
process server. The trial judge concluded that any statutory violation
was merely a technical defect.
The court of appeals, in an opinion written by Judge Hoover,
reversed. The defendants were served by a "nonresident" in violation of
Wis. Stat. section
801.10. Under prevailing case law this constituted a fundamental
defect that entitled the defendants to summary judgment. Service is
"designed to attain jurisdiction over the defendants." Case law requires
"strict compliance" with the statutes governing service, which is a
"condition precedent to a valid exercise of personal jurisdiction."
Service by residents assures that the process server "is readily subject
to process in the state of service in the event an issue arises as to
service."
Garnishments - Defaults - Amended Complaint - Time to Answer
Ness v. Digital Dial Comm.
Inc., No. 96-3436 (filed 14 Oct. 1998) (ordered published 18 Nov.
1998)
In this garnishment action the trial court ruled that the 20-day
period in which to file an answer under Wis. Stat. section
812.11 began when the plaintiff filed the amended complaint, even
though the party was already in default. The court of appeals
reversed.
Writing for the court, Judge Anderson framed the issue as follows:
"When does an amended garnishment summons and complaint, filed but not
served on the defaulting party in accordance with sec.
801.14(1), Stats., supersede the original complaint?" The court held
"that an amended pleading that does not present any additional claims
for relief against a defaulting party relates back to the time the
original complaint was filed; therefore, it does not create another
twenty-day response period for an answer." A defaulting party already
has disregarded its opportunity for defending itself or presenting
additional issues or claims. Allowing a defaulting party a "second
chance" would create an absurd result under the statutes.
Criminal Law
Persistent Repeater Statute - Constitutionality - Assault by
Prisoner Statute
State v. Block, No.
97-3265-CR (filed 28 Oct. 1998) (ordered published 18 Nov. 1998)
The defendant was incarcerated at the Oshkosh Correctional Institute
for second-degree murder and attempted first-degree murder. His victim
in this case was a social worker employed at the institution. When she
informed the defendant he was to be moved to another institution, the
defendant approached her from behind while she was leaving the grounds
and struck her three or four times in the head with a padlock wrapped in
a sock. He was charged with battery by a prisoner (Wis. Stat. §
940.20(1)) and assault by a prisoner (Wis. Stat. §
946.43(1)). For the assault count he was charged as a persistent
offender under Wisconsin's "three strikes" law codified at section
939.62(2m)(b). The defendant was found guilty on both counts; he was
sentenced to life imprisonment pursuant to the persistent repeater
statute.
On appeal the defendant challenged the constitutionality of the
persistent repeater statute on equal protection grounds. He asserted
that the legislature's classification of what is considered a "serious"
felony for purposes of the three strikes statute is arbitrary and
unreasonable. He gave several examples where certain less serious
felonies are counted in the "three strikes" calculation whereas other
more serious felonies are not.
Applying the rational basis standard for analyzing the equal
protection claim, the court of appeals rejected the defendant's
challenge. The determination of which crimes deserve what penalties is
one of the core functions of the legislature, and it is within the
legislature's power to classify crimes, recognize different degrees of
harm that result from them, and decide which more urgently need
repression. Because the choices made by the legislature in the
persistent repeater statute did not rest on grounds wholly irrelevant to
the achievement of the state's objective, the court declined to tamper
with it.
The defendant also claimed that the state failed to prove all of the
elements of the assault by prisoner charge, specifically arguing that
the victim could not have been in apprehension of a battery because it
was a surprise attack. One of the elements of the assault by prisoner
statute is that the defendant place the victim in apprehension of an
immediate battery likely to cause death or great bodily harm. The
defendant argued that because his attack was a surprise, the victim
could not have been in apprehension of it.
The court of appeals concluded that there was ample evidence
presented to permit the jury to conclude that the victim was in
apprehension of an immediate battery and that the defendant intended to
place her in such apprehension. The victim testified that before the
attack, she had frequently seen the defendant outside her office,
staring at her. On the day of the attack, the victim had informed the
defendant that he was to be moved to a more secure building. When the
victim was leaving the grounds, she felt a blow to her head, looked over
her shoulder, and saw the defendant. She recalled that after that first
blow she "knew it was a real problem when she realized she was getting
hit more than once." Based on the testimony, the jury could have
concluded that, after the first blow, she was in apprehension of an
immediate battery - the subsequent blows - and that the defendant,
through all of his actions up to and including the attack, intended to
place her in such apprehension. In the context of this statute, the
court concluded that the onset of apprehension of a battery may occur
while the battery is in progress.
Criminal Procedure
Prosecutorial Vindictiveness - Presumptions
State v. Johnson, No.
97-1360-CR (filed 10 Nov. 1998) (ordered published 16 Dec. 1998)
Following a jury trial, the defendant was convicted of sexually
assaulting two children. He originally was charged with one count of
sexual assault. A trial resulted in a hung jury. Prior to the second
trial, the prosecutor filed an amended information charging an
additional count of sexual assault and burglary. By letter, the
prosecutor agreed to drop the new counts and allow the defendant to
plead to a single sexual assault, with sentencing left to the court's
discretion. The letter also addressed the potentially longer prison
sentence should the defendant take the matter to trial. The trial judge
denied the defendant's motion to dismiss the amended information.
The court of appeals, in an opinion written by Judge Fine, reversed
and remanded the case for further proceedings because the trial judge
erred by rejecting his pretrial claim of prosecutorial vindictiveness.
Since the case had been tried once, the law created a "presumption of
prosecutorial vindictiveness," the purpose of which is to prevent the
"chilling" of a defendant's rights. Retrying the defendant on the
original charge would have created no presumption of vindictiveness. In
this case, however, the addition of two felony charges coupled with the
offer to withdraw the amended information if defendant waived his trial
rights satisfied the prima facie showing necessary to the
presumption.
On remand, the state has the burden of demonstrating by a
preponderance of the evidence that the additional charges were not added
solely to persuade the defendant to plead guilty. Should the state fail,
a potential remedy is the vacatur of the additional sexual assault
count, "leaving intact his conviction on the first count of first-degree
sexual assault of a child if the evidence presented in connection with
the second count and the burglary count would have been admissible at
trial under Rules
904.04(2) and 904.03, Stats., if Johnson had been retried on the
first count only."
Forfeiture of Vehicle Used to Transport Stolen Property - "Innocent
Owner" Defense - Meaning of "Owner"
State v. Kirch, No. 98-0582
(filed 29 Oct. 1998) (ordered published 18 Nov. 1998)
The defendant stole a 16-foot tri-axle trailer using a truck
registered to his mother. The mother told the police that although the
truck was registered in her name, it belonged to her son. She stated
that he provided the money to purchase the vehicle, as well as the money
for the sales tax and registration. She stated that the truck was listed
in her name because her son was undergoing a bankruptcy and he said that
he could not have a vehicle in his name.
The state filed a complaint pursuant to Wis. Stat. sections
973.075 and 973.076 demanding forfeiture of the truck. The sole
issue at the forfeiture hearing was whether the defendant or his mother
was the "owner" of the truck for purposes of the "innocent owner"
defense. The latter, which is codified in section 973.075(1)(b)2,
provides that no vehicle is subject to forfeiture by reason of any act
or omission established by the owner of the vehicle to have been
committed without his or her knowledge or consent. The term "owner" is
not defined in the forfeiture statute, but is defined in the Motor
Vehicle Code as one who holds legal title. Using this definition, the
trial court concluded that the defendant's mother was the "owner" of the
truck and, because she had nothing to do with the commission of the
crime, it dismissed the state's forfeiture complaint.
The court of appeals, in a decision authored by Judge Dykman,
reversed. It rejected use of the Motor Vehicle Code definition of
ownership because the Vehicle Code restricts its definitions to
provisions contained therein and a few others. Instead, the court
concluded that the factors of possession, title, control, and financial
stake ought to be used when determining ownership for purposes of the
"innocent owner" defense.
In this case the mother was listed on the title as the owner, but she
had no financial stake in the truck because it had been purchased
entirely by her son. Nor did she possess or have control over the actual
vehicle. She has not claimed ownership of the truck and stated that the
truck "belongs to" her son, and that she was only listed as the owner
because he was undergoing a bankruptcy and did not want to have the
truck in his name. These, said the court of appeals, are not the indicia
of an "owner" of a vehicle. Accordingly, it concluded that the mother
was not the "owner" of the truck as that term is used in the forfeiture
statute.
Search Warrant Applications - Magistrate's Inference That Drug
Dealer's Residence Contains Contraband
State v. Ward, No.
97-2008-CR (filed 8 Oct. 1998) (ordered published 18 Nov. 1998)
The defendant appealed felony convictions for possession of
controlled substances with intent to deliver contending that evidence
derived from a search of his residence should have been suppressed. He
argued that the search was improper because the warrant application did
not provide sufficient facts from which the issuing magistrate could
conclude that there was probable cause to believe that evidence of
criminal activity would be located within his home.
The affidavit in support of the warrant demonstrated that an
individual named Vance, who recently had been arrested for dealing
marijuana, identified a "Lance" [the defendant's name is Lance Ward] on
Royce Street in Beloit, Wis., as his supplier; that Beloit property tax
records showed that the defendant owned property at 1663 Royce Street;
and that police had received four "pieces of intelligence" indicating
that the defendant was a drug dealer. Though the affidavit failed to
provide a direct connection between the items sought in the warrant and
the dwelling on Royce Street to be searched, the circuit court concluded
that it was reasonable for the issuing magistrate to infer that drug
dealers would store their products and other evidence of criminal
activity within their residences.
In a majority opinion authored by Judge Deininger, the court of
appeals reversed. It began its analysis by noting that whether a
warrant-issuing magistrate may rely upon his or her own experience to
infer, solely from information that a person sells drugs, that evidence
of drug dealing likely will be found within his or her residence is a
question of first impression in Wisconsin. While it is true that the
Wisconsin Supreme Court has recognized that issuing magistrates may draw
the usual inferences that reasonable people draw from evidence when
determining whether a particular warrant application states probable
cause to believe that evidence of criminal activity is likely to be
found in a designated location, the court in this case believed that it
was being asked to ratify a magistrate's inference that supplied
information that was wholly missing from the warrant application. This
the appellate court declined to do. It was not convinced that the
approach urged by the state - that a magistrate's inference that drug
dealers keep incriminating evidence in their homes is always reasonable
- is consistent with Wisconsin case law. Such a blanket rule would
relieve law enforcement of any responsibility to place before a
magistrate the underlying circumstances that establish a substantial
basis that evidence of drug dealing likely will be found in the dealer's
residence.
The court indicated that its rejection of the state's position on
this appeal does not mean that police must obtain a direct observation
of controlled substances on the premises before a warrant may be
obtained to search a suspected drug dealer's home. The court cited
United States v. Lalor, 996 F. 2d 1578 (4th Cir. 1993), which
offered examples of information that links criminal activity to the
defendant's residence, such as prior discovery of contraband in the
suspect's place of residence, a suspect's return to his or her residence
between negotiating and consummating a drug transaction, and
surveillance that connects drug activity to a suspect's residence. The
court also cited a leading Fourth Amendment treatise that provides
additional examples, including drug sales that occur "near the
home."
In sum, the court concluded that the affidavit presented to the
issuing judge in this case as described above did not provide a
substantial basis for finding probable cause that evidence of drug
dealing likely would be found at that location. Although the court will
defer to a magistrate's conclusion whenever possible, and will permit
reasonable inferences to sustain the reliability and timeliness of
information in warrant applications, neither the Fourth Amendment nor
its equivalent provision in the Wisconsin Constitution permits a
magistrate to infer a link between evidence of drug dealing and the
dealer's residence when the application is devoid of any facts or
information from which to infer such a link.
Judge Roggensack filed a dissenting opinion.
Disability Law
ADA - Discrimination by Employers - Personal Liability of Agents of
Employers
Alberte v. Anew Health Care
Services Inc., No. 96-3225 (filed 20 Oct. 1998) (ordered published
16 Dec. 1998)
The issue in this case was whether the Americans with Disabilities
Act (ADA) permits imposition of personal liability on one who is an
"employer" by virtue of her status as an "agent" of an "employer." In a
majority decision authored by Judge Fine, the court of appeals held that
it does.
Anew Health Care Services Inc. provides skilled nursing services to
persons in the community. The plaintiff used to work for Anew. She was
fired by defendant Sprenger, who was president, administrator, and 47.5
percent owner of Anew. The plaintiff claimed that Sprenger fired her
because of the plaintiff's disability. In this lawsuit she sought to
hold Sprenger personally liable, in addition to seeking damages from
Anew. Sprenger contended that she cannot personally be held liable for
what she did as an officer, part owner, and employee of Anew. The
circuit court agreed, but the court of appeals reversed.
The ADA makes it illegal for any "covered entity," which is defined
to include an "employer," to "discriminate against a qualified
individual with a disability." The Act defines "employer" to mean inter
alia "a person engaged in an industry affecting commerce" who employs at
least a specified minimum number of employees "and an agent of such
person." Anew Health Care admitted that it is an "employer"; defendant
Sprenger admitted that she is an "agent." The ADA gives to anyone
claiming to be a victim of a violation under it the remedies set forth
in Title VII of the Civil Rights Act. Title VII defines "employer" to
include "any agent" of the "person" deemed to be an "employer." Relying
on these definitions, the majority concluded that Sprenger was an
"employer" as that term is used in the ADA and thus is subject to
personal liability for violations of the ADA.
Judge Curley filed a dissenting opinion.
Evidence
Accident Reenactments - Expert Foundation - Videotapes
State v. Peterson, No.
97-3737-CR (filed 15 Oct. 1998) (ordered published 18 Nov. 1998)
A jury convicted the defendant of multiple crimes arising out of a
drunk-driving related accident involving a boat. On appeal the defendant
contended that the trial judge erred by excluding from evidence a
videotape "that demonstrated the conditions of the river at the time of
the accident." The judge ruled that a proper foundation required expert
testimony.
The court of appeals, in an opinion written by Judge Vergeront,
reversed and remanded for a redetermination of the videotape's
admissibility. The admissibility of pretrial reenactment evidence is
within the trial court's discretion and subject to a weighing of
probative value against unfair prejudice under section
904.03. In this case the judge erred by requiring expert testimony
as a necessary predicate for the admissibility of "video images."
Videotapes, like any other form of photographic evidence, can be
authenticated by a lay witness who testifies that, based on personal
knowledge, the videotape fairly and accurately depicts what he or she
saw. The defense provided such evidence in this case and the state
offered nothing to rebut it. The trial judge also erred by excluding the
videotape based on the judge's personal knowledge of the river's
condition at night. The court of appeals carefully distinguished between
a judge's proper use of judicial notice (what we all "know") from an
improper expression of personal knowledge. Finally, the judge also
excluded the videotape under section 904.03, but the errors necessitated
a remand so that the trial judge could reconsider balancing of probative
value and prejudicial effect.
Family Law
Domestic Abuse Injunctions - "Household Member"
Petrowsky v. Krause, No.
97-2205 (filed 4 Nov. 1998) (ordered published 16 Dec. 1998)
Annette Petrowsky and Brad Krause dated from June 1994 until
September 1996. During the summer of 1996, they took numerous trips to
Brad's parents' cabin in northern Wisconsin. They would stay in the
cabin together and then return to their respective homes in Ozaukee
County. They did this repeatedly throughout that summer.
In September 1996 the parties ended their dating relationship. There
was evidence that they were in contact after that, although it was
disputed who initiated the contacts. These communications caused Brad to
contact the police in June 1997 and Annette to petition for a temporary
restraining order against Brad under the domestic abuse statute in
August 1997. The petition alleged physical and emotional abuse
throughout their relationship and a threat of physical violence during a
1997 phone call.
The temporary restraining order was granted. Subsequently the circuit
court found that there was sufficient evidence to conclude that the
parties were living together during the summer of 1996 and that there
were reasonable grounds to believe that Brad had engaged in or may
engage in domestic abuse against Annette. Accordingly, the court issued
a domestic abuse injunction.
The issue on appeal was whether the trial court erred in issuing the
domestic abuse injunction. The Wisconsin domestic abuse statute applies
to certain acts engaged in by "an adult family member or adult household
member against another adult family member or adult household member."
See Wis. Stat. §
813.12(1). The statute defines "household member" to mean any person
"currently or formerly residing in a place of abode with another
person."
In this case the parties were dating, but were not married. The
evidence demonstrated that they stayed together under one roof when they
took frequent trips to a cabin during the summer of 1996. In a unanimous
decision authored by Judge Brown, the court of appeals concluded that,
as a matter of law, the evidence was insufficient to find that they were
"household members" for purposes of the domestic abuse statute. Said the
court, the clear language of the statute mandates a continuous living
arrangement between the parties in order for them to be considered
household members. Annette and Brad dated for more than two years while
maintaining separate residences. Their summer excursions, while perhaps
frequent, did not amount to a domestic living arrangement. Had the
evidence showed that the two stayed together while at the cabin and in
Ozaukee County, the result may be different. The court did not think it
significant that the parties reside together only in one place, but did
believe that it is important that they reside together on a continuous
basis in order to come within the parameters of the domestic abuse
law.
Child Custody - Revisions of Physical Placement Orders - Moving
Child's Residence Outside the State - Power of Court to Refuse to Allow
Minor Child to Testify
Hughes v. Hughes, No.
97-3539 (filed 12 Nov. 1998) (published 16 Dec. 1998)
This case involves the revision of physical placement orders and the
interplay between Wis. Stat. sections
767.325 and 767.327. The former governs revisions to physical
placement orders whereas the latter, among other things, governs moving
the child's residence outside the state.
Section 767.325 provides that it is "applicable to modifications of
legal custody and physical placement orders," "except for matters under
s. 767.327 or 767.329 [revisions by stipulation]." This means that if
one parent contemplates a move, that parent must proceed under section
767.327, and section 767.327(3) then governs placement and custody
modification if the move is contested. The latter statute permits
modification if it is in the best interest of the child and the move
results in a substantial change in circumstances. However, neither
section 767.325 nor 767.327 states that, once a parent has provided
notice of a move under section 767.327, the parent opposing the move may
not bring a motion for a revision of physical placement under section
767.325 based upon a substantial change in circumstances other than the
proposed move.
Despite the urgings of the appellant in this case, the court of
appeals concluded that sections 767.325 and 767.327 do not conflict. The
latter applies where the only potential substantial change in
circumstances is the proposed move, whereas the former applies when the
moving party asserts that circumstances other than those associated with
a proposed move have changed. Both statutes establish a rebuttable
presumption that continuing the child's physical placement with the
parent with whom the child spends the most time is in the child's best
interest, and both require that the court determine if modification is
in the child's best interest, in addition to determining if there is a
substantial change in circumstances. The difference is that under
section 767.327 the move is the basis for the requisite substantial
change in circumstances, whereas section 767.325 does not contain that
limitation.
The court also reviewed the circuit judge's decision refusing to
allow the minor child's mother to call the child as a witness in the
proceedings.
One of the factors the court "shall consider" in deciding what is in
a child's best interest with respect to placement and custody is "the
wishes of the child, which may be communicated by the child or through
the child's guardian ad litem or other appropriate professional."
See § 767.24(5)(b). The plain language of the statute does
not require that the child testify to his or her preference in court, or
even that the trial judge communicate in person with the child. The
statute requires the court to consider the child's preference, but it
does not require the court to use any particular method to inform itself
of the preference. How the statutory duty is discharged is left to the
court's discretion. The appellate court in this case concluded that the
trial judge properly exercised his discretion in not permitting the
child to testify given that the judge was concerned by the parents' high
level of hostility over the child's physical placement and the
difficulty the child would have in testifying about her preferences in
front of both parents.
Finally, the court of appeals rejected the mother's argument that she
had a right to call the minor child as a witness because the minor was
competent to testify under Wis. Stat. section
906.01, which provides that "every person is competent to be a
witness except as provided by ss.
885.16 and 885.17 or as otherwise provided in these rules." The
general rule on competency of witnesses permits the minor to testify as
an evidentiary matter; it does not remove nor negate the trial court's
discretion in the particular circumstances of a custody or placement
dispute to decide that it is not in the child's best interest to testify
to the child's preference on placement or custody.
Insurance
Pollution Exclusion - "Nontoxic" Qualities
Guenther v. City of
Onalaska, No. 98-0724 (filed 19 Nov. 1998) (ordered published 16
Dec. 1998)
The Guenthers suffered damage when their sewer backed up into their
basement. The circuit court dismissed their claim against the city's
insurer based on a pollution exclusion.
The court of appeals, in a decision authored by Judge Roggensack,
reversed. The court found that the pollution exclusion was ambiguous.
Ambiguity in the policy arose from the distinction between the "toxic"
and "nontoxic" qualities of potential discharges (or flooding). The
insured (the city) could have "reasonably understood that the exclusion
for 'contamination by pollutants' did not apply to an occurrence as
routine as a domestic sewer backup, which caused at least some damages,
which were unrelated to any toxic nature of the sewage."
Motor Vehicle Law
OWI - Preliminary Breath Tests - Requirement of Probable Cause -
Constitutionality of Loud Muffler Statute
County of Jefferson v.
Renz, No. 97-3512 (filed 15 Oct. 1998) (ordered published 18 Nov.
1998)
The critical issue in this case was the amount of evidence that a law
enforcement officer must have in order to request a motorist to provide
a breath sample for a preliminary breath test (PBT). Wis. Stat. section
343.303 provides that if a law enforcement officer has "probable
cause" to believe that the person is violating or has violated the OWI
law or certain similar offenses, the officer may, prior to an arrest,
request the person provide a sample of his or her breath for a PBT.
[Note: A different and less demanding threshold is used in the statute
with reference to testing commercial vehicle operators.]
The county argued that the probable cause required to request a PBT
is a lesser standard than the probable cause required for an OWI arrest.
Otherwise, said the county, the PBT would not be necessary. The circuit
court agreed with this position.
In a decision authorized by Judge Vergeront, the court of appeals
reversed. While granting that the county's interpretation of the statute
was reasonable, the court concluded that a more reasonable
interpretation, when considering the purpose, context, and history of
the statute, is that the probable cause required for a PBT is the same
standard as probable cause to arrest for OWI. The court acknowledged
that requiring probable cause to arrest before requesting a PBT limits
the conditions under which the PBT may be requested and undercuts the
use of a PBT to establish probable cause to arrest. However, it does not
deprive the PBT of all meaning or function. Even if an officer has
probable cause to arrest, he or she may decide to request a PBT first,
and then use the results in deciding whether to actually make an
arrest.
Another issue addressed by the court is the constitutionality of the
loud muffler statute, a violation of which was the basis for the
officer's initial contact with the defendant in this case. Wis. Stat. section
347.39 provides that no person shall operate on a highway any motor
vehicle subject to registration unless such vehicle is equipped with an
adequate muffler in constant operation and properly maintained to
prevent any excessive or unusual noise or annoying smoke. The defendant
contended that the statute violates due process because it is vague.
Rejecting this claim, the court concluded that the challenged term
"excessive noise" means "unreasonable noise" and the concept of
reasonableness is sufficiently definite to satisfy the vagueness test.
The statute makes clear that excessive or unusual noise is to be judged
against the noise emitted by a muffler that meets statutory requirements
when originally installed on the vehicle.
Nuisance
Permanent and Continuing Nuisances - Statute of Limitations
Sunnyside Feed Co. Inc. v. City
of Portage, No. 98-0709 (filed 15 Oct. 1998) (ordered published 18
Nov. 1998)
Sunnyside Feed Mill is a historic building located in the city of
Portage. In 1986 and 1987, the city conducted a restoration project
along the canal where the building is located. As a result of the manner
in which the restoration project was conducted, Sunnyside notified the
city of the possibility of a claim regarding the ongoing damage to the
mill's structure and foundation and, after filing a notice of claim,
sued the city in 1996 claiming that the city was negligent in the manner
in which it conducted the restoration project and that its actions or
inactions constituted an ongoing nuisance.
The city and its insurer filed a motion for summary judgment,
asserting that the claims were time-barred by the statute of
limitations. The court granted the motion on the negligence claim but
denied it as to the nuisance claim. At trial the jury found the city
created a nuisance and awarded Sunnyside damages.
Among the critical issues on appeal was one relating to the statute
of limitations on the nuisance claim. If a nuisance is permanent, a suit
must be commenced within the applicable statute of limitations. However,
if a nuisance is continuing, the nuisance claim is not barred by a
statute of limitations because there is no statute that bars an action
for a continuing injury to property. See Speth v. City of
Madison, 248 Wis. 492, 22 N.W.2d 501 (1946). A nuisance generally
is considered to be continuing if it can be discontinued or abated, or
if it is an ongoing or repeated disturbance, such as a disturbance
caused by noise, vibration, or foul odor. In this case the court
concluded that the testimony presented showed that the harm caused by
the city to the plaintiff is ongoing and could be abated. Thus, the
nuisance claim was not time barred.
As a matter of procedure the court concluded that where, as in this
case, the underlying facts surrounding the creation of the asserted
nuisance are undisputed, and application of a statute of limitations is
the issue, whether the nuisance is permanent or continuing becomes a
question of law to be decided by the trial court and reviewed de novo by
the court of appeals. In footnote, the court observed that where damages
are disputed, and the evidence is conflicting as to whether the nuisance
is permanent or continuing, the question should be submitted to the
jury.
Real Property
Slander of Title - Lis Pendens - Condominium Units
Interlaken Service Corp. v.
Interlaken Condominium Assoc. Inc., No. 97-1107 (filed 7 Oct. 1998)
(ordered published 18 Nov. 1998)
A service corporation brought a breach of contract action against a
condominium association, alleging a failure to pay for services provided
to the association. Later, the service corporation filed an amended
complaint requesting a proportional lien against each condominium unit
under section
703.25(3) of the Wisconsin Statutes. It also filed a lis pendens
pursuant to the same statute. The association counterclaimed that the
lis pendens constituted a slander of title under Wis. Stat. section
706.13. The trial court dismissed the counterclaim because the service
corporation was both "privileged and required" to file the lis
pendens.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. In a "conventional civil suit," a judgment results in a lien
on all real property of every person against whom the judgment is
entered in the county where the judgment is rendered. See Wis.
Stat. §
806.15(1). A "very different situation" is contemplated by section
703.25(3) because of the "unique[ness]" of condominiums. Although the
condominium association is the defendant under the statute, not the
individual condominium owners, "the lien granted by the statute operates
against the property of the condominium owners even though those persons
were not defendants in the action." Thus, "the lien follows the real
estate, not the owner." For these reasons, a lis pendens is "critical to
protect a prospective condominium purchaser."
Adverse Possession - Common Grantor - Predecessors-in-Title
Keller v. Morfeld, No.
97-3443 (filed 15 Oct. 1998) (ordered published 18 Nov. 1998)
In this action to quiet title between neighbors, the Kellers
maintained that they acquired title to the disputed property by the
adverse possession of the prior owner as against their neighbors'
predecessors-in-interest. When Thorson, the prior owner, purchased the
property in the early 1950s there was only a tavern on it. Later he
subdivided the property into two separate parcels and built a house on
the northerly part. Thorson sold the tavern parcel in 1977 and continued
to live in the house. He treated the disputed land as part of the
property belonging to the residential lot and used it for parking and
storing equipment used in his business. Thorson sold the house to the
Kellers in 1987 and they continued to treat the disputed land as part of
their residential lot (for example, planting trees). The Morfelds
acquired the tavern property in 1987. The tavern parcel had gone through
a number of the Morfelds' "predecessors" since Thorson sold it in 1977.
The trial judge ruled that the disputed property belonged to the
Kellers.
The court of appeals, in an opinion written by Judge Eich, affirmed.
This was an "atypical" adverse possession because the grantor, Thorson,
"whose adverse possession the Kellers seek to 'tack on' to their own,
was also the grantor to the Morfelds' predecessors-in-title." This meant
that the Kellers had to establish that Thorson's possession was adverse
to the Morfelds' predecessors. Addressing several nineteenth century
cases that identified a "presumption" that a grantor cannot possess
adversely against his or her grantee, the court of appeals rejected the
reasoning as "tautological." The cases did not identify a true
presumption; rather, they apply "accepted principles of adverse
possession to the situation where the opposing parties have taken their
land from a common grantor, in the same manner as in any other case."
Placing "structural encroachments" on the land is not a requirement of
adverse possession. The record adequately supported the trial judge's
finding that Thorson used the property adversely to the interests of
those who owned the tavern
parcel.
Sexual Predator Law
Commitments - Antisocial Personality Disorder - "Mental
Disorder"
State v. Adams, No. 96-3136
(filed 10 Nov. 1998) (ordered published 16 Dec. 1998)
Adams appealed his commitment as a sexually violent person under
chapter 980 of the Wisconsin Statutes. This case presented several
issues of first impression. The court of appeals, in an opinion written
by Judge Schudson, affirmed the commitment.
First, the court concluded "that, under ch. 980,
a person who has the mental disorder of 'antisocial personality
disorder,' uncoupled with any other mental disorder, may be found to be
a 'sexually violent person.'" Second, the court upheld the
constitutionality of commitments predicated on a diagnosis of antisocial
personality disorder. Adams argued that antisocial personality disorder
"is too imprecise a category to pass due process muster." Even assuming
that antisocial personality disorder is a fairly "common" diagnosis,
chapter 980 would never permit commitment based only upon the diagnosis.
Rather, the state must demonstrate that the individual satisfied the
other criteria of section 980.01(7) in order to qualify a "sexually
violent person." Third, the court held that there was sufficient
evidence supporting the jury's verdict.
Finally, the state did not violate Adams' rights by impermissibly
commenting on his right to remain silent. Case law precludes prosecutors
or psychologists from commenting on a defendant's refusal to speak with
a psychologist. In this instance, however, Adams attacked the ethics of
a psychologist for rendering an opinion without having examined the
defendant. Nor was there proof that the prosecutor had used Adams'
silence as proof of guilt during closing arguments (which were not
transcribed). The court addressed several other issues which did not
amount to reversible error of any sort.
State Government
Wisconsin Attorney General - Power to Challenge Constitutionality of
State Statute
State v. City of Oak Creek,
No. 97-2188 (filed 24 Nov. 1998) (ordered published 16 Dec. 1998)
The Wisconsin attorney general was involved in environmental
litigation in which he sought to have the City of Oak Creek's
channelization of Crawfish Creek declared a nuisance. As part of that
litigation the attorney general challenged the constitutionality of Wis.
Stat. section
30.056, which exempts the city from certain permit requirements with
respect to its channelization of the creek.
A critical issue on appeal was whether the Wisconsin attorney general
may challenge the constitutionality of a state statute. In a majority
decision authored by Judge Fine, the court concluded that he may not.
The Wisconsin constitution sets the scope of the attorney general's
authority: "the powers, duties and compensation of the treasurer and
attorney general shall be prescribed by law." See Wis. Const. Art. VI
§ 3. This clause means that the attorney general in Wisconsin has
no powers other than those specified by the legislature. The court was
unable to identify any statute authorizing the attorney general to
challenge the constitutionality of state statutes. Other than the narrow
exception that permits challenges to legislative apportionments, it is
the attorney general's duty to defend the constitutionality of state
statutes. See Public Intervenor v. Department of Natural
Resources, 115 Wis. 2d 28, 339 N.W.2d 324 (1983).
In footnote the majority noted that there have been many cases where
the attorney general has challenged the constitutionality of
legislation. However, the state admitted at oral argument that in none
of the prior cases was the power of the attorney general to do so either
disputed (as it was in this case) or decided.
Judge Schudson filed a dissenting opinion.
Torts
Emotional Distress - "Indirect" Exposure to the Event
Rosin v. Fort Howard Corp.,
No. 98-0861 (filed 13 Oct. 1998) (ordered published 18 Nov. 1998)
Bradley was 9 years old when his father was killed in an explosion at
a power plant. His mother told him the tragic news the next morning.
That afternoon in the newspaper, Bradley saw a photograph of his
father's body being taken from the accident scene. A psychologist linked
Bradley's ongoing emotional and psychological problems to the traumatic
photo. By his guardian ad litem, Bradley brought an action against the
defendants (in particular, the power plant's owner). The circuit court
dismissed the claim for negligent infliction of emotional distress
because of an insufficient link between the defendants' conduct and the
boy's emotional
distress.
The court of appeals, in a decision written by Judge Cane, affirmed
based on the public policy analysis set forth in recent case law.
Bradley did not personally observe his father's death or personally see
his father's body at the accident scene. Moreover, Bradley learned about
his father's death through "indirect" means; that is, his mother's
statements and the newspaper photo.
Sales of Goods - Economic Loss Doctrine - Negligence
Biese v. Parker Coatings
Inc., No. 98-1466 (filed 3 Nov. 1998) (ordered published 16 Dec.
1998)
The owner of a sports bar contracted with a flooring company to
install a special floor. Parker Coatings Inc. provided the flooring
materials. When problems developed with the floor that could not be
fixed, Parker and the flooring company installed a new floor. When the
problems persisted, Biese filed a negligence action against Parker
alleging that it had provided defective flooring materials, improper
instructions on installation, and other claims. Biese sought damages for
repair and replacement of the defective floor, lost profits, and damage
to the business's reputation. The circuit court granted summary judgment
in Parker's favor. Absent a claim of personal injury or physical harm,
Biese's remedy was a breach of warranty claim, not a tort claim.
The court of appeals, in an opinion written by Judge Cane, affirmed.
Under the case law, "economic loss is damage to a product itself or
monetary loss caused by a defective product that does not cause personal
injury or damage to other property." The court held, "[I]n cases
involving mixed transactions for goods and services between a remote
commercial purchaser and a manufacturer, even in the absence of privity,
we will apply the predominant purpose test to the entire underlying
transaction to determine if the economic loss doctrine bars a remote
commercial purchaser's negligence claim against a manufacturer for
solely economic losses." For most commercial products, service is
incidental to sales. For this reason, "allowing a purchaser to recover
solely economic loss for the negligent provision of services when the
predominant purpose is a sale of goods would render the economic loss
doctrine virtually meaningless and would allow a remote commercial
purchaser who incidentally receives services from a manufacturer to
circumvent the economic loss doctrine."
In this case, Biese plainly wanted to obtain the product that a third
party applied to the floor. Biese's damages resulted from a failed
commercial product caused by a defective chemical component, "not
because Parker negligently provided services." Parker's services were
clearly incidental to Biese's purchase of the product.
Worker's Compensation
Disability Payments - Advanced Payments - Interest Computation
Hamm v. LIRC, No. 98-0051
(filed 18 Nov. 1998) (ordered published 16 Dec. 1998)
Joyce was injured while working in 1991. She was awarded monthly
partial permanent disability benefits of about $600 until the sum of
$60,000 had been paid. In 1994 Joyce requested "an advance lump sum
payment" under section
102.32(6) of the Wisconsin Statutes, which authorizes such
distributions. A dispute arose over the computation of interest as
determined by the hearing examiner. LIRC affirmed the examiner, as did
the circuit court, who determined that the employer was entitled to an
interest credit on Joyce's advanced disability benefits on a 7 percent
per annum basis. Joyce contended that it should be applied at a flat
rate.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. The court held that section 102.32(6) was ambiguous as to
"whether the 7 percent credit granted to insurers who advance a lump sum
payment of benefits is to be computed at a flat or per annum rate."
LIRC's interpretation was reasonable because section 102.32(6) "provides
that permanent disability benefits 'shall be made to the employee on a
monthly basis' unless advance payments are approved by the Department.
When such payments are approved, the interest credit provision
compensates the employer or the employer's insurer for lost interest on
the payment paid in a lump sum - money which would have otherwise been
paid out over time."
Zoning
Setback Ordinances - Variances - "Unnecessary Hardship"
State ex rel. Spinner v.
Kenosha County Board of Adjustment, No. 97-2094 (filed 11 Nov. 1998)
(ordered published 16 Dec. 1998)
The respondent owns property fronting on a lake in Kenosha County.
His property is unusual because a meandering creek from the lake bisects
the middle of his land. County zoning ordinances require buildings to be
set back 75 feet from any navigable water. Due to the peculiarity of the
property in question, the respondent must accommodate both navigable
waters - the creek as well as the lake - with the 75 foot setback
requirement.
The respondent desired to build a residence on the property and
sought a zoning variance to do so. The Kenosha County Board of
Adjustment granted the variance because it found that with the irregular
shape of the respondent's property, an "unnecessary hardship" would
result from enforcing the setback requirement. Neighboring landowners
petitioned for certiorari review of the variance grant but the circuit
court affirmed the board's decision.
The court of appeals, in a decision authored by Judge Anderson,
reversed the circuit court. It agreed with the neighbors that the board
applied an incorrect theory of law for determining whether an
"unnecessary hardship" was present for the zoning variance request and
that the evidence was insufficient to support the board's
conclusion.
The court of appeals resolved the appeal by examining the
"unnecessary hardship" standard developed by the Wisconsin Supreme Court
in another case involving Kenosha County. See State v. Kenosha County Board of
Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998). In that decision
the supreme court stressed that the board's proper focus when
considering a variance request should be the purpose of the zoning
regulation. "When the record before the board demonstrates that the
property owner would have a reasonable use of his or her property
without the variance, the purpose of the statute takes precedence and
the variance request should be denied." Accordingly, the supreme court
concluded that "only when the applicant has demonstrated that he or she
will have no reasonable use of the property, in the absence of a
variance, is an unnecessary hardship present."
In this case the court of appeals found that there was no evidence
presented that a different design of the proposed house could not
incorporate the setback requirement. Without such evidence, the
applicant still may enjoy a reasonable use of the property without a
variance. The burden is on the applicant to demonstrate through the
evidence that without the variance he or she is prevented from enjoying
any reasonable use of his or her property. The applicant must present
evidence demonstrating that no other home design could incorporate the
setback requirement on the property. In this case he failed to do so and
therefore a reasonable use for his property without a variance remains a
possibility.
Judge Nettesheim filed a concurring opinion.
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
