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Vol. 72, No. 6, June 1999

Court of Appeals Digest

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

| Civil Procedure | Contracts |
| Criminal Law | Criminal Procedure | Family Law |
| Insurance | Municipal Law | Paternity |
| Open Records Law | Real Property |

Motion to Dismiss for Failure to State a Claim - Filing the Motion After Filing of the Answer

Eternalist Foundation Inc. v. City of Platteville, No. 98-1944 (filed 18 March 1999) (ordered published 21 April 1999)

Wis. Stat. section 802.06(2)(a) provides among other things that every defense in law or fact to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if one is required, except that certain defenses may at the option of the pleader be made by motion. These include the defense of failure to state a claim upon which relief can be granted and the statute of limitations. Section 802.06(2)(b) provides that a motion making any of the defenses listed in section 802.06(2)(a)1 shall be made before pleading if a further pleading is permitted. In this case the plaintiffs argued that the language of this statute means that a defendant may not file a motion to dismiss for failure to state a claim and on statute of limitations grounds once the defendant has filed an answer.

In a decision authored by Judge Deininger, the court of appeals rejected the plaintiffs' interpretation. The court acknowledged that the statute's language cited above is somewhat confusing if read in isolation. When read in the context of other subsections of section 802.06, however, it becomes apparent that the provisions of section 802.06(2) serve simply to indicate which defenses a defendant may raise prior to, and in lieu of, filing an answer to a complaint. Other subsections of the statute make clear that a defendant who includes the defenses of failure to state a claim or statute of limitations in an answer does not forfeit the right to bring those defenses on for disposition by motion thereafter. Accordingly, the court concluded that the defendants' motion to dismiss for failure to state a claim and on statute of limitations grounds was properly before the circuit court, despite the defendants' having previously filed an answer.

Statute of Limitations - Section 803(5) - "Same Occurrence"

Strassman v. Muranyi, No. 98-3039 (filed 18 March 1999) (ordered published 21 April 1999)

Strassman was injured in a golf cart mishap in August 1994. In May 1995 she and her health insurer sued the golf pro who had rented the cart and his insurer, alleging some kind of defect in the cart. The defendants in turn filed an amended third-party claim against Strassman's husband and his insurer, General Casualty, alleging that Strassman's injuries occurred because of the husband's negligent driving. This third-party claim was filed in July 1996. In October 1997 Strassman and her health insurer also filed a claim against the husband and General Casualty alleging the husband's negligent driving. The trial court granted summary judgment to General Casualty dismissing Strassman's complaint because it was time barred under the statute of limitations.

The court of appeals, in an opinion written by Judge Dykman, affirmed. Under section 893.54(1) of the Wisconsin Statutes, tort actions must be brought within three years of the injury or its discovery. Strassman brought her claim against General Casualty (and her husband) in October 1997, more than three years since the August 1994 injury. She argued, however, that section 803.05(1) permitted her to bring the claim because another party had asserted the same claim within the statute of limitations (the July 1996 claim) and all parties had notice. The court rejected the argument because Wisconsin's statutes of limitation "serve a much different purpose than simply providing notice and repose." More precisely, they completely "extinguish" the right to bring a claim.

Store Lease - Repairs - Termination - Economic Loss

Decade 80-1 Ltd. v. PDQ Food Stores Inc., No. 98-0810 (filed 24 March 1999) (ordered published 21 April 1999)

A tenant in a mall operated a convenience store. When the landlord failed to repair potholes in the parking lot, the tenant stopped paying rent and vacated the premises. The landlord sued the tenant for the lost rent. The trial judge found that the potholes constituted a breach of the lease.

The court of appeals, in an opinion written by Judge Brown, affirmed. The court framed the main question as whether the tenant had "to show substantial damages to its business in order to establish a breach that justified terminating the lease." It observed that this was not a constructive eviction action. Rather, the landlord breached a "specific provision requiring maintenance of the parking lot, not the covenant of quiet use which is the basis of constructive eviction cases." The maintenance provision was part of the bargain struck between the parties. Nothing in the lease established that the tenant had to demonstrate actual economic loss before invoking its remedies. Thus, the court refused to grant a "free pass to landlords to ignore contractual agreements."

Self-defense - Retreat - McMorris Evidence

State v. Wenger, No. 98-1739-CR (filed 21 Jan. 1999) (ordered published 21 April 1999)

The court of appeals, in an opinion written by Judge Cane, affirmed the defendant's conviction for second-degree reckless injury with a dangerous weapon. One of the key issues concerned the accuracy of the trial court's instruction on self-defense and retreat, Wis JI - Criminal 810. Although the self-defense statute does not mention retreat, case law recognizes the proposition that "whether the opportunity to retreat was available may be a consideration regarding whether the defendant reasonably believed the force used was necessary to prevent or terminate the interference." The evidence revealed that the defendant "may have been able to retreat safely into his house and lock the door." The feasibility of these measures was a jury issue.

A second issue concerned the trial court's exclusion of certain McMorris evidence; that is, prior acts of violence by the victim, known to the defendant, offered to show the reasonableness of the defendant's behavior. In this case the defense wanted to offer some evidence about the victim's prior violent behavior that the defendant was unaware of at the time of the offense. Several cases "seem to indicate that evidence concerning the reality or actuality of the victim's prior specific violent acts is admissible to prove the reasonableness of the defendant's knowledge and lend credibility to his assertions about his state of mind." The same cases indicate that "the witnesses need not have communicated these observations to the defendant." The court of appeals held, however, that any error was harmless because the excluded evidence was essentially cumulative.

Exculpatory Evidence - Failure to Disclose - Gunshot Residue Tests

State v. DelReal, No. 97-1480-CR (filed 9 March 1999) (ordered published 21 April 1999)

The court of appeals, in an opinion written by Judge Wedemeyer, reversed the defendant's conviction for second-degree recklessly endangering safety, while armed, and remanded the case for a new trial. The error consisted of the state's failure to dis-close that following the shooting, swabs had been taken of the defendant's hands that could have been tested for gunshot residue. A detective had testified that no such swabs had been taken. Thus, the existence of the swabs was relevant to attack the detective's credibility and shed light on the quality of the investigation. Moreover, the results of the gunshot residue test were negative. Although this did not conclusively prove the defendant's innocence, it was relevant and exculpatory. The court also declined to find that the error was harmless.

Guilty Plea Hearings - Advice to Defendant Regarding the Setting of Parole Eligibility

State v. Byrge, No. 97-3217-CR (filed 17 March 1999) (ordered published 21 April 1999)

Under present law a court sentencing a defendant to life imprisonment is required to make a parole eligibility determination. Pursuant to Wis. Stat. section 973.014(1) the court has three options: 1) determine that the defendant is eligible for parole using the ordinary calculations established in Wis. Stat. section 304.06(1); 2) determine a parole eligibility date that is later than that calculated under section 304.06(1); or 3) determine that the defendant is not eligible for parole. In this case the court selected the second option and fixed the defendant's parole eligibility date at July 2, 2095, after he had been convicted of first-degree intentional homicide and various related felonies. The judgment followed the entry of no-contest pleas.

While the court's plea colloquy with the defendant was extensive and otherwise complete, it did not advise the defendant of the court's options regarding the setting of parole eligibility or the court's power to fix a parole eligibility date. The defendant contended that this failure was error.

In a decision authored by Judge Nettesheim, the court of appeals disagreed. It held that a defendant is not statutorily or constitutionally entitled to a forewarning about parole eligibility as part of the plea colloquy process in a case governed by section 973.014(1). Though the court of appeals recommended the practice, it held that a valid plea colloquy does not require that the court advise a defendant that it may set a parole eligibility date.

Child Support - Arrearages - Equitable Credit

Monicken v. Monicken, No. 98-2922 (filed 30 March 1999) (ordered published 21 April 1999)

The original judgment of divorce in this case, which approved and incorporated a marital settlement agreement, provided that the husband should pay to his ex-wife for the support of their minor children the sum of $500 each month to be deducted from his income pursuant to an assignment of income. That judgment was later amended to provide that the monthly payments were to be made directly by the husband to his ex-wife without the involvement of the local clerk of court. Only two such payments were made. However, the parties had orally agreed to a different child support arrangement whereby money would be paid by the husband directly to the children or to a third party. Several years later the wife filed a contempt motion alleging that her ex-husband failed to pay his child support as agreed to by the parties and requested the payment of child support arrearages.

The circuit court denied the contempt motion. It concluded that no arrearages existed because the husband had, on average, expended $448 per month for the children by making cash and noncash payments directly to them and to third parties. The court further held that neither Wis. Stat. sections 767.32(1m) nor (1r) precluded it from recognizing the payments that the husband had made. Further, the court concluded that the extrajudicial oral agreement between the parties was enforceable under the doctrine of equitable estoppel.

In a decision authored by Chief Judge Cane, the court of appeals reversed. First, it concluded that because the judgment only provides for direct cash payments to the ex-wife, the circuit court erred when it concluded that the husband fully complied with the judgment by making cash and noncash payments directly to the children and third parties. The appellate court next considered whether the statutes cited above allowed the circuit court to modify the amended judgment and credit the husband for the direct payments he made to his children and third parties that do not comply with the amended judgment. The court agreed with the wife that recently amended section 767.32(1r) limits a circuit court's authority to modify an existing child support arrearage to the specific circumstances enumerated in that statute. Accordingly, the appellate court remanded this matter so that the circuit judge could consider whether under section 767.32(1r), the husband should receive credit for expenditures made in a manner other than as prescribed in the amended judgment of divorce.

Grandparent Visitation - Wis. Stat. section 880.155 - "Best Interest of the Child"

F.R. v. T.B., No. 98-0819 (filed 11 March 1999) (ordered published 21 April 1999)

This case involves grandparent visitation privileges under Wis. Stat. section 880.155. This statute provides that if one or both parents of a minor child are deceased and the child is in the custody of the surviving parent or any other person, a grandparent or stepparent of the child may petition for visitation privileges with respect to the child, whether or not the person with custody is married. The statute further provides that the court may grant reasonable visitation privileges to the grandparent or stepparent if the surviving parent or other person who has custody of the child has notice of the hearing on the matter and if the court determines that visitation is in "the best interest of the child."

Among the critical issues in this case was the meaning of the phrase "best interest of the child." In a decision authored by Judge Dykman, the court of appeals began its analysis by noting that nothing in the statute's language defines the meaning of this phrase. Nor is there anything in the legislative history that suggests how the phrase should be interpreted. The court therefore looked to other statutes in which this language is used. It found that section 767.245, which addresses visitation rights of nonparents, contains language strikingly similar to section 880.155. Though section 767.245 does not define its use of the phrase "best interest of the child," the court looked for guidance on how to interpret this language in other provisions of chapter 767. In section 767.24(5) the court found the most extensive explanation of what a trial court should consider when it determines the "best interest of the child." The court of appeals was satisfied that this definition also sets out an appropriate standard for determining the "best interest of the child" under section 880.155.

Divorce - Maintenance - Comparable Standard of Living

Johnson v. Johnson, No. 98-2141 (filed 3 Feb. 1999) (ordered published 21 April 1999)

William Johnson appealed from an order modifying the amount of maintenance he must pay to his former wife. He contended that the trial court erred in setting maintenance above 50 percent of the total household income at the time of the divorce. In a decision authored by Judge Brown, the court of appeals concluded that the trial court's decision on maintenance was reasonable and in accordance with the law.

While the appellate court recognized that it is reasonable to consider an equal division of total income as a starting point in determining maintenance, an equal division of income is not the only starting point. In this case the trial court looked at the type of lifestyle the parties maintained during the marriage, considering such factors as home ownership, insurance coverage, vacation time, and hobbies. It then determined the amount necessary for Johnson's wife to maintain a comparable lifestyle and based its maintenance award on this determination. This type of analysis may very well come much closer to a realistic approximation of the maintenance necessary to support the predivorce standard of living than a rote calculation based on income.

The court also noted the fact that maintaining two households is more expensive than maintaining one means that 50 percent of the total income at the time of the divorce will rarely allow either of the parties to maintain the marital standard of living. In most cases, both parties will take a cut in lifestyle as a result of the divorce. Fifty percent of the predivorce income often is taken as a starting point because maintenance of the payee spouse at the predivorce standard of living is not feasible - the payer cannot afford it. But the goal is that standard of living enjoyed during the marriage, not 50 percent of the total predivorce income. In this case the trial court's analysis was an attempt to approximate the predivorce standard of living and the payor's increase in income allows maintenance of that standard of living without undue hardship.

The court felt compelled to clarify what this opinion did not say. A payee spouse is not entitled to maintenance allowing a lifestyle above and beyond the predivorce standard of living. Just because the payor has achieved a position that enables him or her to live a richer lifestyle than that enjoyed during the marriage does not mean that the payee may share this lifestyle as well through maintenance. The court also pointed out that this was not a case where the maintenance award was based on the payor's anticipated increase in salary. See Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992).

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