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    Wisconsin Lawyer
    June 01, 2001

    Wisconsin Lawyer June 2001: Court of Appeals Digest

    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

    Criminal Law

    Child Enticement - Internet - Fictitious Victim

    State v. Koenck, 2001 WI App 93 (ordered published 25 April 2001)

    The following allegations are derived from the criminal complaint filed in this case. According to that document, the defendant communicated via the Internet with "Teddie" and "Georgie," persons he believed to be 12-year-old girls. In fact, they were fictitious persons created by Internetwatch, an organization that monitors the Internet, mostly for child pornography. Internetwatch creates profiles of fictitious persons and communicates with individuals on the Internet using these fictitious profiles. When inappropriate responses are received, they are turned over to law enforcement for investigation.

    During the communications involved in this case, the defendant allegedly expressed a desire to have sexual intercourse with "Teddie" and "Georgie." When "Teddie" and "Georgie" informed the defendant of their plans to visit Wisconsin, the defendant immediately expressed an interest in meeting them. He made reservations at an area hotel and arranged to meet the "girls." He drove from his home in Iowa, checked into a hotel, and then traveled to a prearranged meeting place in order to meet "Teddie" and "Georgie." He was arrested by Wisconsin Department of Justice agents when he arrived at the prearranged meeting place. The defendant subsequently admitted that he intended to have sex with both "Teddie" and "Georgie."

    The defendant was charged with two counts of child enticement, contrary to Wis. Stat. section 948.07(1). Among other things, this statute provides that whoever, with intent to have sexual contact or sexual intercourse with a child, "causes or attempts to cause" a child who has not attained the age of 18 to go into any vehicle, building, room, or secluded place is guilty of a serious felony. The defendant filed a motion to dismiss the complaint, which was denied by the circuit court.

    The court of appeals, in a decision authored by Judge Snyder, affirmed. The statute cited above includes both attempted and completed acts of enticement. This reflects a determination by the Legislature that an attempted act of child enticement is as egregious as the completed act, and thus each warrants the same penalty. Within the contemplation of section 948.07, an attempt is committed when the defendant, with intent to commit a crime, takes action in furtherance of such intent and the failure to accomplish the crime is due to a factor beyond his or her control or one unknown to him or her. The court of appeals concluded that the fictitiousness of the girls constituted an extraneous factor beyond the defendant's control that prevented him from successfully enticing a child for the express purpose of sexual intercourse or contact. The defendant did everything necessary to ensure the commission of the crime intended, and his conduct is not excused because of the fortuitous circumstance rendering it impossible to effectuate the intended result.

    The defendant argued that the Legislature intended the crime of attempted child enticement to require the presence of an actual child and not a fictional child. However, the defendant cited no legislative history or legal authority for this proposition and, in the view of the court, his argument disregards the principles behind attempt crimes.

    Criminal Procedure

    Sentencing - Consecutive Terms of Probation Prohibited

    State v. Schwebke, 2001 WI App 99 (ordered published 25 April 2001)

    The defendant was convicted of six counts of disorderly conduct and the court imposed consecutive terms of probation as the disposition. Among the issues on appeal was whether the court erred in imposing consecutive terms of probation. In a decision authored by Judge Anderson, the court of appeals reversed on this issue.

    Wis. Stat. section 973.09(2) provides that the original term of probation for misdemeanors shall be not less than six months nor more than two years. However, if the defendant is convicted of not less than two nor more than four misdemeanors at the same time, the maximum original term of probation may be increased by one year. If the defendant is convicted of five or more misdemeanors at the same time, the maximum original term of probation may be increased by two years.

    In this case, because the defendant was convicted of six misdemeanors at the same time, the total allowable term of probation is four years. The statute accommodates the multiple counts of conviction by allowing a single, extended term of probation (four years instead of two years). The statute does not authorize consecutive terms of probation. Because the multiple counts already are reflected in the extended maximum allowable probation term, it would defy legislative intent to allow consecutive terms of probation.

    This conclusion is consistent with other provisions of Wisconsin's sentencing laws. Wis. Stat. section 973.15(2) provides statutory authority for making sentences consecutive to one another, but it does not authorize courts to make a term of probation consecutive to another term of probation. Wis. Stat. section 973.09(1) provides that "a period of probation may be consecutive to a sentence on a different charge, whether imposed at the same time or previously"; however, this statute does not provide that a period of probation may be consecutive to another term of probation.

    Accordingly, the court of appeals commuted the defendant's sentence to the total allowable term of probation. He was convicted of six misdemeanors at the same time, and the total allowable term therefore would be four years.

    Restitution - "Insurers" - County Programs - Prison Wages

    State v. Baker, 2001 WI App 100 (ordered published 25 April 2001)

    Baker was convicted of sexually assaulting a child and appealed the court's restitution order. The court of appeals, in a decision written by Judge Dykman, affirmed an order that required Baker to pay restitution to the county's medical assistance program. The plain language of Wis. Stat. section 973.20(5)(d), the nature of the medical assistance program, and its subrogation rights under section 49.89(2), supported the conclusion that the county's program was an "insurer" under the restitution statute. "Victims need not present evidence of the program's obligation to pay or of its subrogation relationship in each case." (¶ 13). The court of appeals also upheld the trial court's authority to compel the withholding of prison wages in order to pay restitution.

    Appeals - Right to Counsel - Indigency Determinations

    State v. Nieves-Gonzalez, 2001 WI App 90 (ordered published 25 April 2001)

    The defendant pled guilty and was convicted of various drug offenses. He requested postconviction counsel from the state public defender and asked the trial court to appoint counsel on his behalf. Both the trial judge and the public defender concluded that defendant did not meet indigency guidelines for appointed counsel.

    The court of appeals, in a decision written by Judge Dykman, reversed and remanded. Wisconsin courts are not controlled by the public defender's criteria. The court held that trial judges must consider the federal poverty guidelines in determining indigency, as suggested by the Wisconsin Judicial Benchbook CR 3-6 (2000). While the federal guidelines should be considered, not all defendants with income less than those indexed in the poverty guidelines are entitled to court-appointed counsel. Rather, judges should consider other significant assets or "unforeseen factors" that might affect the determination. The court of appeals remanded the matter for a hearing on whether the defendant qualifies for court-appointed counsel in accordance with these standards.

    Employment Law

    Covenants Not to Compete - Enforceability

    Mutual Service Casualty Insurance Co. v. Brass, 2001 WI App 92 (ordered published 25 April 2001)

    Mutual Service Casualty Insurance Co. (MSI) hired the defendant as an insurance agent. He subsequently entered into a career agent's contract with MSI. The contract contained provisions regarding the defendant's activities after termination. These provisions stated that the defendant was precluded for at least a year from soliciting MSI customers to "lapse, cancel, or replace" any insurance contract in force with MSI in order to take that business to a competitor. The contract also provided that the defendant not work for American National Insurance Co. for three years after termination of the contract.

    The defendant continued his employment with MSI for two years after signing the career agent's contract. At that time he gave written notice to MSI of his intention to terminate his agency contract. He immediately began working for American National as an agent and proceeded to contact customers of MSI in this regard.

    MSI initiated a lawsuit against the defendant, claiming that he violated the noncompete terms of his agency contract. The circuit court found that the contract failed because it was overbroad in respect to time and geographical territory. Summary judgment thus was granted in favor of the defendant, dismissing MSI's claim. The court of appeals, in a decision authored by Judge Anderson, affirmed.

    Wisconsin law favors the mobility of workers; therefore, a contract that operates to restrict trade or competition is prima facie suspect and will be liberally construed in favor of the employee. Such restrictions must withstand close scrutiny to pass legal muster as being reasonable; they will not be construed to extend beyond their proper import or further than the language of the contract absolutely requires. This policy has been codified by the Legislature in Wis. Stat. section 103.465.

    The provisions of the noncompete agreement at issue in this case are intertwined and indivisible because they govern several similar types of activities and establish several time and geographical restraints. Therefore, if one provision is unreasonable, all of the provisions are unreasonable. However, the court of appeals did not stop its analysis after holding one of the provisions unreasonable. Instead, it chose to address all three provisions of the noncompete agreement and held that each of the three is unreasonable and under any of the provisions the indivisible covenant is unenforceable.

    The noncompete agreement provided that the defendant must forfeit all termination compensation that remains unpaid if he solicits any MSI policyholders. This indicates that the defendant is to have nothing to do with MSI policyholders, known or unknown, in Wisconsin or anywhere else in the world. This geographical limitation is overbroad and fails under section 103.465. Secondly, the agreement allows MSI to cancel termination compensation at any time after the defendant's employment terminates. There is no specific time limitation within this provision, and therefore, one easily could construe it as meaning that MSI may seek enforcement at any point following the defendant's termination. This time restriction, too, is overbroad. Finally, the agreement is overbroad because it prohibits the defendant from accepting any type of employment with American National. Said the court, "this indicates that, for example, the defendant could not work for American National as a claims adjuster or even as a janitor."

    Whether a restrictive covenant is reasonably necessary to protect the employer depends upon the totality of the circumstances and is a question of law to be resolved on the basis of either factual findings made by the circuit court or a stipulation of all the relevant facts by the parties. The court of appeals agreed with the circuit court and held that nowhere has MSI demonstrated that these restrictive provisions were necessary to preserve the interests of MSI. It also agreed that these restrictive provisions are onerous and unreasonably dampen the economic interests of the defendant to earn a living. In sum, the restrictive covenant, as a whole, is unenforceable.

    Family Law

    Paternity - Child Support - Deviation From Percentage Support Guidelines

    State v. Patrick G.B., 2001 WI App 85 (ordered published 25 April 2001)

    The respondent fathered a child but didn't find out about it until years later. When a paternity action was commenced against him 10 years after the child was born (and after genetic testing was conducted), the respondent admitted paternity. The circuit court ordered both past and future child support.

    The focus of this appeal was upon past child support and the arrearages as determined by the circuit court. The cases of Brad Michael L. v. Lee D., 210 Wis. 2d 437, 564 N.W.2d 354 (Ct. App. 1997), and Wala P. v. Alonzo R., 230 Wis. 2d 17, 601 N.W.2d 328 (Ct. App. 1999), together with Wis. Stat. section 767.51(4), dictate that a father is responsible for a child's support for all years following his or her birth, whether or not the father knew of the child's birth.

    However, pursuant to section 767.51(4m), a court can deviate from the child support guideline standards when establishing both back and future support if, after considering the factors set forth in section 767.51(5), the court finds by the greater weight of the credible evidence that use of the percentage standards is unfair to either the child or the requesting party. The child support guideline standards are not mandatory but "presumptively" applicable, absent a showing of unfairness. In concluding that a deviation is warranted, a trial court need not apply all 14 factors set forth in section 767.51(5) in a checklist fashion, but need only consider those factors that are relevant. See Wala P., 230 Wis. 2d at 28.

    Because in this case it appeared that the circuit court failed to consider the implications of Wala P. in issuing its order, the court of appeals remanded for reconsideration.

    Guardianships

    Interested Persons - Standing - Termination of Lease

    Carla S. v. Frank B., 2001 WI App 97 (ordered published 25 April 2001)

    In 1991 a father and mother deeded their home to three of their children, not including Carla S., and a grandchild. At that same time, the father and mother received a lease for life, provided they paid rent of one dollar per year plus taxes, utilities, and so on. The mother died in 1993 and the father suffered a stroke in 1997, as a result of which he resides in a nursing home. In 1999 the father's guardian brought an action to terminate the father's interest in the lease so that he would not be obligated to pay property taxes and other costs for a place in which he no longer lives. The trial court granted the petition.

    The court of appeals, in a decision written by Judge Dykman, reversed and remanded. The first issue was whether Carla S., a daughter who was not an owner/lessor, had standing to appeal. The guardian did not dispute the trial judge's finding that Carla was an "interested" person as defined in Wis. Stat. section 880.01(6), but argued that she had no standing to appeal. The court of appeals disagreed. First, the guardian cited no authority for the proposition that a party with standing in a trial court nonetheless lacks standing to appeal, a "strange" argument also belied by logic and public policy (¶ 6). In sum, the trial court had discretion to allow an "interested person" to participate in a chapter 880 guardianship proceeding because oftentimes "[w]ithout an interested party's ability to protest a guardian's gift of a ward's property, there would often be no check on a guardian's failure to follow the law" (¶ 7).

    Turning then to the substantive issues, the court held that reversible error occurred when the trial judge failed to consider alternatives to terminating the life lease. For example, the home could have been rented in order to preserve it in a "financially viable" manner. "Common sense" suggested that the father obtained a considerable benefit by being able to rent the home for a dollar, despite his obligations. The guardian's desire to preserve the assets of the father's estate only begged the question of whether another, better alternative existed.

    Dissenting, Judge Deininger argued that Carla S. had no standing to appeal this order and that her remedies rested in other statutes permitting review of her father's placement and his competency status, or perhaps even seeking the guardian's removal.

    Juvenile Law

    Dispositional Orders - Stays of Orders

    State v. Kendell G., 2001 WI App 95 (ordered published 25 April 2001)

    The juvenile was found delinquent for committing a theft. The dispositional order placed him under the supervision of the Human Services Department for one year, with placement at the Carmelite School for Boys. This dispositional order subsequently was revised to provide for placement at the Ethan Allan School for one year, with this commitment being stayed on the condition that the juvenile comply fully with all of the other terms and provisions of the dispositional order.

    The juvenile violated his supervision, and the state brought a motion asking the juvenile court to lift the stay on the juvenile's commitment to Ethan Allan. The court lifted the stay and directed that the juvenile be placed at Ethan Allan for one year, with the one-year term commencing with the lifting of the stay.

    The juvenile disputed the juvenile court's determination regarding the duration of the placement order, arguing that his one-year placement at Ethan Allan should terminate one year from the date of the original dispositional order in this case. He argued that the court's ruling impermissibly extended the duration of the original dispositional order beyond the one-year limitation set forth in Wis. Stat. section 938.355(4) because that order had not been extended pursuant to section 938.365.

    The court of appeals, in a decision authored by Judge Nettesheim, affirmed the circuit court. Section 938.34(16) permits a juvenile court to stay the imposition of a dispositional order to give the juvenile a second chance to conform his or her behavior to any conditions imposed by the court. Failure to comply with the conditions can trigger the commencement of the stayed portion of the dispositional order. It would be unreasonable to conclude that a dispositional order that has been stayed commences any earlier than the date the stay is lifted by the juvenile court.

    The appellate court concluded that the juvenile court's decision to stay the placement eliminated the need for any extension of the original dispositional order. It further concluded that the running of the one-year limitation of section 938.355(4) as to the juvenile's placement at Ethan Allan commenced when the juvenile court lifted the stay on the placement.

    Lemon Law

    Leased Vehicles - Timeliness - Service of Process

    Varda v. GMC, 2001 WI App 89 (ordered published 25 April 2001)

    Varda leased a vehicle that met the statutory definition of "lemon" under Wisconsin's Lemon Law, Wis. Stat. section 218.0171. Although the problems arose during the first year of the lease, Varda did not demand statutory relief from the manufacturer until after the lease had expired and Varda had purchased the vehicle under the lease's terms. The trial court dismissed his Lemon Law complaint.

    The court of appeals, in a decision written by Judge Vergeront, affirmed. When Varda made the demand, he was no longer a lessee with the meaning of section 218.0171(1)(b)4 and did not fall within any other provision which defines "consumer." This followed from both the statute's plain language and its underlying policy: "Whatever the lease term, it is rational to require that a person who knows that the vehicle he or she has leased has a nonconformity that has not been able to be repaired after at least four attempts, or has been thirty days out of service because of the nonconformity, request relief for the nonconformity before the lease term expires and the person purchases the vehicle" (¶ 39). Nor was the court concerned that a manufacturer's delay could deprive a lessee of any remedy. When a "consumer," as defined, makes a proper demand, the consumer is entitled to the refund within 30 days of offering to return the vehicle or the manufacturer violates the Lemon Law.

    Finally, the court also addressed whether GMC properly served Varda with its answer. Varda, a lawyer who represented himself in this matter, claimed that GMC was not statutorily entitled to leave the Federal Express packet, which contained the answer, with the receptionist at his law firm. Construing the phrase "person in charge [of the office]" under Wis. Stat. section 801.14(2), the court rejected Varda's contention that his "office policy" should control, especially in a case not involving service of a summons and complaint. The court held that "when an office designates a person to receive and sign for Federal Express deliveries, that is a 'person in charge [of the office]' within the meaning" of the statute (¶ 18, 23).

    Sexually Violent Persons

    Jury Trials - Unanimous Verdicts - Waiver

    State v. Denman, 2001 WI App 96 (ordered published 25 April 2001)

    In a bench trial, Denman was adjudicated and committed as a sexually violent person under Wis. Stat. chapter 980. On appeal, he claimed that he had not validly waived his right to jury trial following his initial request for one. The court of appeals, in a decision written by Judge Vergeront, affirmed. Examining the case law governing the waiver of the right to jury trial in criminal cases and the statutory language in chapter 980, the court held that defendants need not be personally advised that verdicts must be unanimous under chapter 980. Nothing in the statute compels the trial judge to obtain a personal waiver of the right to jury generally; indeed, the statute provides for an automatic bench trial unless a party requests a jury within the 10-day time frame of section 908.05(2). Similarly, "§ 908.05(2) does not require that a respondent be advised by the court that a jury verdict must be unanimous in order for the withdrawal of his or her request for a jury trial to be valid" (¶ 12).

    Juveniles - Delinquency Adjudications - "Old" Chapter 48

    State v. Gibbs, 2001 WI App 83 (ordered published 25 April 2001)

    In this appeal Judge Anderson, writing for the court, held that circuit courts are authorized to proceed on Wis. Stat. chapter 980 sexually violent person commitments based upon juvenile adjudications under chapter 48. In essence, Gibbs argued that only juveniles adjudicated under present Wis. Stat. chapter 938 are subject to chapter 980 commitments. The court affirmed his commitment under chapter 980.

    First, the court held that section 980.02(2)(ag) is ambiguous because of statutory changes after Gibbs was adjudicated delinquent. Specifically, Gibbs was found delinquent before the Legislature "broke up" Wis. Stat. chapter 48 by placing the delinquency provisions in present chapter 938. The court had to grapple with the 1993-94 and 1997-98 versions of chapter 980, both of which, despite variations in language, embraced individuals adjudicated delinquent based upon sexually violent offenses. Confusion arose because the Legislature recreated chapter 980 in order to incorporate references to newly created chapter 938. It would have been "absurd" to conclude, however, that the Legislature intentionally excluded from chapter 980 coverage all those adjudicated under chapter 48 for offenses identical to those now found in chapter 938. In short, "a renumbered statute without a change in substance does not exempt a defendant from chapter 980" (¶ 11).

    Torts

    Dog Bite - Intra-insured Exclusion - "Keepers"

    Malik v. American Family, 2001 WI App 82 (ordered published 25 April 2001)

    Malik agreed to take care of a dog owned by her friends, the Hermans, while they were on vacation. The dog bit Malik, and she sued the Hermans and their homeowner's insurer. Malik appealed three different summary judgment rulings. The court of appeals, in a decision written by Judge Vergeront, affirmed.

    First, the court held that the homeowner's insurer was properly dismissed because there was no coverage under its policy. At the time she was bitten, Malik was an "insured," as defined by the policy, for purposes of personal liability and medical expenses because she was (quoting the policy) "'legally responsible ... for a[n] animal owned by [the Hermans]' and she had custody of the animal 'not in the course of any business' and 'with [the Hermans'] specific permission'" (¶ 16). The court was not persuaded that the intra-insured exclusion, which thus barred her from suing the Hermans' insurer, rendered coverage "illusory."

    Second, Malik's claim against the Hermans was barred by Wis. Stat. section 174.02 and case law construing it. The statute's purpose is to protect persons who are not in a position to control the dog, "not to protect those persons who are statutorily defined as owners," including a dog's keepers (¶ 26). The rule applies even where the legal owner is negligent. In short, Malik retains her common-law negligence claim against the Hermans, but she cannot rely on the statute and its double damages provision. The court carefully discussed the cases decided since 1996 in resolving this issue.

    Finally, the trial court properly construed section 174.02(1)(b) to permit recovery of double damages only for violations of the statute and not for common law negligence (¶ 30). The case law barring one "owner" from suing another "owner" under the statute clearly foreclosed this argument as well.

    Jury Instruction - Passing on the Right - Road "Shoulder"

    Kaufman v. Postle, 2001 WI App 86 (ordered published 25 April 2001)

    While Kaufman was turning right from Highway 10 onto a road, her vehicle was struck by Postle's as he tried to "pass" her on the shoulder. A jury found Postle 90 percent negligent, and he appealed the trial court's instruction that informed the jury, in effect, "that a driver may not pass traffic on the right using any part of the road's shoulder" (¶ 5). The court of appeals, in a decision written by Judge Roggensack, affirmed. Wisconsin traffic law permits overtaking and passing on the right only under conditions of safety and only if the operator can do so "without driving off the pavement or main-traveled portion of the roadway." Wis. Stat. § 346.08. The court held that the prepositional phrase "of the roadway" modifies both "pavement" and "main-traveled portion." And "[b]ecause a shoulder of a highway is never part of a roadway," the instruction was correct.


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