Court of Appeals Digest
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.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Attorneys
Signatures - Rubber-stamped Imprint - Summons and
Complaint
Novak v. Phillips,
2001 WI App 156 (filed 15 May 2001) (ordered published 23 July 2001)
The sole issue in this case concerned the validity of an attorney's
rubber-stamped imprint of his handwritten signature on a summons and
complaint. The court held that a "stamped reproduction of a signature
does not satisfy Wis. Stat. §§ 801.09(3) or 802.05(1)(a) and
that correcting the signature a year after receiving notice is not
timely under § 802.05(1)(a)" (¶ 2). The court distinguished
case law and rules that require attorneys to "subscribe" to papers,
which can be done with a rubber-stamped signature. Section 802.05(1)(a)
specifically requires a handwritten signature.
The court next determined that the defect was technical, not
fundamental, which permitted the complainant to demonstrate that the
defendant was not prejudiced. Neither defendant argued that the
complaint was not well founded or properly investigated or that the
summons failed to notify them of the action (¶ 26). The court
found, however, that the technical defect was prejudicial because the
plaintiff did not "promptly" correct it. Finally, the court remanded the
case for a determination of whether the complainant should be permitted
to amend the summons and complaint. (The trial court had erroneously
concluded that it lacked subject matter jurisdiction and thus could not
consider the motion.)
Civil Procedure
Default Judgments - Extensions - Oral Agreements -
Evidence
Johnson Bank v. Brandon
Apparel Group Inc., 2001 WI App 159 (filed 14 June 2001)
(ordered published 23 July 2001)
The trial court granted a default judgment against the defendants
based upon their failure to file a responsive pleading within the time
required. The defendants unsuccessfully claimed that they had an "oral
agreement" that extended the time.
The court of appeals, in an opinion written by Judge Dykman,
reversed. Recent case law establishes that "[i]n the context of an
untimely answer, reasonable grounds for noncompliance with a statutory
time requirement constitutes excusable neglect" ¶ 11, citing Connor
v. Connor, 2001 WI 49, ¶ 16. Courtesy agreements can be oral or
written. In this case, the parties submitted conflicting affidavits as
to whether an oral agreement existed. The trial court erroneously
exercised its discretion by entering a default judgment without hearing
testimony: "Unless the facts are undisputed or the right to a hearing is
waived, a party or attorney is entitled to more than a trial by
affidavit" (¶ 17).
Criminal Law
Possession of Child Pornography - Multiplicity
State v. Multaler,
2001 WI App 149 (filed 12 June 2001) (ordered published 23 July
2001)
While executing a search warrant for unrelated offenses, the police
found numerous videotapes, computer equipment, and two computer
diskettes. The diskettes were labeled with the words "child
pornography." After obtaining a second search warrant to copy and search
the contents of the diskettes, the execution of that warrant revealed 79
photographic images of children engaging in sexually explicit
conduct.
The state charged the defendant with 79 counts of possession of child
pornography contrary to Wis. Stat. section 948.12. This statute
prohibits possession of "any ... photograph ... or other pictorial
reproduction ... of a child engaged in sexually explicit conduct." The
defendant claimed that the 79 counts were multiplicitous. The circuit
court never decided the multiplicity motion, however, because the
defendant entered into an agreement by which he pled no contest to 28
counts [there being no more than one count per printed page of child
pornography].
In a majority decision authored by Judge Schudson, the court of
appeals concluded that the 28 counts to which the defendant entered his
plea were not multiplicitous. Although each count was brought under the
same statute, the offenses were sufficiently different "in fact" to
support separate counts. Had this case been tried, the state would have
had to prove that the defendant not only knew that he possessed each
page, but that he knew each page depicted sexually explicit conduct and
that he knew or reasonably should have known that each page displayed a
child under the age of 18 engaging in the sexually explicit conduct.
Even though the 28 counts were sufficiently different in fact to
survive a double jeopardy attack, they still could be multiplicitous if
the Legislature intended that multiple offenses be brought as a single
count or as a single "unit of prosecution." If the offenses are
different in fact, as they were here, a presumption arises that the
Legislature intended to permit cumulative punishments for the multiple
offenses. This presumption can be rebutted only by clear legislative
intent to the contrary. In this case the court concluded that the
defendant failed to rebut the presumption that the Legislature intended
to permit multiple punishments for multiple offenses of possession of
child pornography.
[NOTE: This case also presented significant "staleness" issues
relating to the information that supported the first search
warrant.]
Judge Fine filed a concurring opinion and Judge Curley dissented.
Both of their opinions dealt only with the search warrant issues.
Criminal Procedure
Truth-in-Sentencing - "Boot Camp" Eligibility
State v. Steele,
2001 WI App 160 (filed 6 June 2001) (ordered published 23 July 2001)
In connection with a manufacturing/delivering cocaine offense that
occurred since Wisconsin's new truth-in-sentencing statutes took effect,
the circuit court sentenced the defendant to a six-year term of
confinement followed by five years of extended supervision. At the
sentencing hearing, the court determined that the defendant was not
eligible for the challenge incarceration "boot camp" program (see Wis.
Stat. § 302.045) because of the seriousness of his offense. The
defendant challenged this determination on appeal.
In a unanimous decision authored by Judge Snyder, the court of
appeals affirmed. When imposing a bifurcated sentence under
truth-in-sentencing, the court must, "as part of the exercise of its
sentencing discretion," decide whether the defendant is eligible or
ineligible for challenge incarceration during the confinement portion of
his sentence. See Wis. Stat. § 973.01(3m). According to the court
of appeals, at sentencing the judge "must first determine whether the
offender meets the preliminary [boot camp] criteria of sec. 302.045(2)
regarding voluntariness, age, nature of offense, substance abuse issues,
and absence of psychological, physical, or medical limitations. [These
criteria are specified in the "boot camp" statute.] Then the court must
determine, exercising its own discretion, whether an offender who
already meets the sec. 302.045 specified criteria is eligible for boot
camp" (¶ 8).
In this case, while the trial court considered boot camp, it decided
that boot camp was inappropriate for the defendant because of the
seriousness of his offenses. [In addition to the
manufacturing/delivering cocaine crime that was committed after
truth-in-sentencing took effect, the defendant also was convicted of a
like offense that occurred prior to truth-in-sentencing.] The judge's
decision to deny the defendant placement in boot camp was based upon an
appropriate sentencing factor, that is, the gravity of the offenses.
Accordingly, the appellate court concluded that the judge did not misuse
sentencing discretion when finding the defendant ineligible for
challenge incarceration.
Indeterminate Sentences - Serious Felonies - Presumptive
Mandatory Release
State ex rel. Gendrich v.
Litscher, 2001 WI App 163 (filed 13 June 2001) (ordered
published 23 July 2001)
The defendant was sentenced to prison under Wisconsin's old
indeterminate sentencing system after he was convicted of first-degree
sexual assault of a child. This is one of the "serious felonies" for
which the mandatory release on parole date is only presumptive. When the
defendant reached his presumptive parole date, the Parole Commission
decided to hold him in custody longer.
The defendant filed a petition for a writ of certiorari claiming a
liberty interest in being released on his mandatory release date and
challenging the commission's decision to extend that date. The circuit
court denied the writ. In a decision authored by Judge Anderson, the
court of appeals affirmed.
The critical issues before the appellate court were whether the
defendant had a legitimate liberty interest in being released on his
mandatory parole eligibility date and whether that interest was entitled
to due process protections. The court was satisfied that the statute
establishing presumptive mandatory release for certain serious felonies
does not create a legitimate liberty interest in being paroled. It
permits the Parole Commission to deny mandatory release to otherwise
eligible prisoners when, in its discretion, the prisoner either poses a
risk to the public or refuses to participate in necessary counseling and
treatment. Because the defendant was not entitled to release on his
presumptive mandatory release date, he was not entitled to any due
process protections. See ¶ 10.
The court went on to indicate that, even if it were to conclude that
the presumptive mandatory release scheme created a legitimate liberty
interest entitled to due process protections, it would hold that the
defendant received all of the due process to which he was entitled. He
was given a hearing before a member of the Parole Commission and, at
that hearing, had the opportunity to state his case for parole and to
challenge the information in his prison record. After the conclusion of
the hearing, the commission gave the defendant a written explanation of
why he was denied release.
Municipal Law
Zoning - Variances - Special Exceptions
Fabyan v. Waukesha County
Board of Adjustment, 2001 WI App 162 (filed 20 June 2001)
(ordered published 23 July 2001)
A county shoreland zoning ordinance distinguishes between "special
exceptions" and "variances." In this case, the owners of property
obtained a special exception to the floor area ratio requirements of a
county ordinance from the county board of adjustment. An opponent of
this action argued that the board acted upon an incorrect theory of the
law in that the grant of the special exception was actually a disguised
grant of a variance pursuant to Wis. Stat. section 59.694(7)(c).
Treating the grant as a variance, the opponent argued that the owners
failed to demonstrate the unnecessary hardship requirement of variance
law as set forth in the statute cited above and in State v. Kenosha
County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998).
In a decision authored by Judge Nettesheim, the court of appeals
upheld the decision of the board of adjustment. In so finding, the court
needed to distinguish between a variance and a special exception,
something that has not been done previously in a reported Wisconsin
case. Drawing upon several commentators, the court noted that the
concept of a special exception grew out of the rigid and difficult
barriers presented by the unnecessary hardship test associated with the
law of variances. In essence, a special exception involves a use that is
permitted rather than proscribed by zoning regulations. It is allowed
only upon approval of a board of adjustment or other administrative body
charged with various duties and invested with certain powers in
connection with the administration of zoning regulations. See ¶ 15.
A variance, on the other hand, authorizes a landowner to establish or
maintain a use that is prohibited by zoning regulations. See ¶
16.
Property
Homesteads - Execution - Converted Funds
Paulman v.
Pemberton, 2001 WI App 164 (filed 28 June 2001) (ordered
published 23 July 2001)
Carole, Jeanine, and Charles are the three surviving children of
Dorothy Paulman. Dorothy's trust, which held all her assets, named
Jeanine and Charles as primary beneficiaries, with only minor provisions
for Carole. Dorothy also executed durable powers of attorney that gave
Jeanine and Charles control over her property and affairs. Dorothy was
later placed in a group home and her own house sold for $186,000, after
which Jeanine and Charles took $88,000 and $78,000 respectively and used
the funds to purchase homes.
After Dorothy's death, Carole filed complaints against Charles and
Jeanine for conversion and breach of fiduciary duty. Eventually, Jeanine
and Charles stipulated that they would make about $35,000 in staggered
payments to the estate. When the two siblings reneged on the
stipulation, Carole requested that their homes be taken to satisfy the
judgment obtained by the estate pursuant to the stipulation. The trial
court ruled, however, that under Wis. Stat. section 815.20 their homes
were exempt and could not be used to satisfy the judgment.
The court of appeals, in an opinion written by Judge Dykman,
reversed. (The appeal focused on Charles because Jeanine filed for
bankruptcy protection.) "Old" but "good" case law established that there
are instances in which the homestead exemption is inapplicable and thus
a judgment lien may be permitted against a home. And "liens" are no
different than "executions" for purposes of Wis. Stat. section 815.20.
The case law permits execution against homestead property in which
converted funds were invested. In this case, Charles conceded in the
stipulation that he and Jeanine had converted Dorothy's funds. In
conclusion, Wis. Stat. section 815.20 did not bar the execution sale of
Charles' home, "because he purchased it with converted funds in which
Carole had an interest" (¶17).
Torts
Subrogation - "Made Whole" Doctrine - ERISA -
Preemption
Kavelaris v. MSI Ins.
Co., 2001 WI App 161 (filed 27 June 2001) (ordered published 23
July 2001)
The plaintiff was injured and his wife killed in a car accident. The
tortfeasor's insurer agreed to pay policy limits of $200,000 in exchange
for a complete release and dismissal of claims against their insured.
The plaintiff agreed, provided that his employer's medical insurer,
CGLI, which had a subrogated claim of more than $130,000, agreed to
waive its subrogated interest because the $200,000 did not cover his
damages. CGLI refused on the grounds that Wisconsin's "made whole" rule
was preempted by ERISA. The trial court ruled that the "made whole"
doctrine is not preempted by ERISA and CGLI appealed.
The court of appeals, in an opinion written by Judge Snyder,
affirmed. Case law establishes that "insured plans" are not governed by
ERISA and are therefore subject to the "made whole" doctrine, which
provides that subrogated carriers cannot collect until the injured party
has been completely compensated. In resolving CGLI's preemption claim,
the court examined three ERISA clauses: 1) the preemption clause; 2) the
savings clause; and 3) the "deemer" clause (¶7). The "savings
clause" places "insured plans" outside ERISA's orbit. The court held
that the "made whole" doctrine is an insurance regulation and, thus, the
"ERISA savings clause applies to the insurance benefit provided by CGLI"
(¶12). ERISA's "deemer" clause did not destroy the savings clause
"because CGLI is an insurance company that has insured [plaintiff's
employer's] ERISA plan under a policy regulated by the insurance laws of
Wisconsin" (¶16). In short, the "made whole" doctrine eliminated
CGLI's subrogation claim.
Wisconsin Lawyer
