Court of Appeals Digest

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

| Attorneys | Civil Procedure | Commercial Law |
| Construction Law | Criminal Law | Criminal Procedure |
| Criminal Procedure/Juvenile Law | Evidence | Family Law |
| Habeas Corpus | Insurance | Protective Placements |
| Real Property | Torts |

Summaries - "Pedagogical Devices"

State v. Olson, No. 96-2142-CR (filed 17 March 1998) (ordered published 29 April 1998)

A jury convicted the defendant of multiple counts of sexual assault. The primary issue on appeal concerned the prosecutor's use during closing argument of a chart that summarized the witnesses' testimony.

The court of appeals, in an opinion written by Judge Schudson, affirmed. The parties and the court agreed that the chart was not admissible as a "summary exhibit" under section 910.06 of the Wisconsin Statutes, which is limited to summaries of "voluminous writings," and so on. The chart's use was, however, an appropriate exercise of the court's discretion under Wis. Stat. section 906.11. Federal courts are split over the use of charts purporting to summarize testimony. Their use in Wisconsin is entrusted to the trial court's discretion under section 906.11(1), which gives the judge power to control the mode and order of interrogating witnesses and the presentation of evidence to the end of better ascertaining "the truth." Finally, the judge accurately instructed the jury that it should rely on its own recollection of the underlying testimony and evidence, using the chart only to the extent that it was consistent with the jury's recollection.

Prospective Physical Placement Orders - Changing Surname of Children - Ex Parte Communications with the Court

Jocius (n/k/a Fleming) v. Jocius, No. 96-2746 (filed 31 March 1998) (ordered published 29 April 1998)

Victoria and Mark Jocius were divorced in 1990. At that time the trial court accepted their signed marital settlement agreement, which divided their marital property, gave sole legal custody of their three children to Victoria, and provided Mark with periods of physical placement. In 1996 a letter purportedly written and signed by the three minor children was sent to the court. The judge read the letter and appointed a guardian ad litem for the children. Thereafter the guardian submitted an affidavit that served as the underpinnings for obtaining a child abuse temporary restraining order and a domestic abuse temporary restraining order that, following hearings, resulted in the entry of injunctions against Mark.

The guardian ad litem also filed an order to show cause asking for a complete denial of Mark's periods of physical placement with the children, claiming that "such placement would endanger the children's physical, mental and emotional health pursuant to Wis. Stat. sec. 767.325(4)." Additionally, the guardian requested that the children's surname be changed to their mother's maiden name. In anticipation of a contested hearing, the trial court appointed counsel for Mark. Following a multi-day hearing, the court rendered a decision in which it denied Mark any periods of physical placement with his children and prohibited him from petitioning for any change in physical placement of the children. It also ordered the surname of the children changed.

The court of appeals, in a decision authored by Judge Curley, reversed. Among its many holding were: 1) the statute permitting a trial court to deny a parent physical placement does not permit the trial court to make a prospective order prohibiting a parent from ever requesting a change in physical placement in the future; 2) the trial court's order changing the surname of the children was not authorized by chapter 767, which permits the trial court to restore a former surname to a divorcing spouse but makes no mention of the children (who must use the name change procedure found in chapter 786); 3) the role of the guardian ad litem in a post-judgment revision of a physical placement case does not extend to or include the commencement of a civil name change action on behalf of the children; and 4) the trial court exceeded its authority in appointing private counsel to represent Mark.

Finally, with regard to the trial judge's appointment of a guardian ad litem for the children following receipt of their letter, the appellate court specifically cautioned judges to avoid taking a similar course of action as they may run afoul of SCR 60.04(g)(1) governing ex parte communications. The court recognized that well-intentioned parties and friends often attempt to communicate with judges in divorce cases in the hope of influencing the judge's decision. Judges need to institute procedures so that these communiqués do not inadvertently violate the ex parte communication directive.

Said the court, "while we share the trial court's concern for the welfare of young children, we feel it unwise to appoint a guardian ad litem for children in a divorce action several years after the divorce has been granted when there is no pending litigation. This is especially so when the appointment is done on the strength of a letter sent by three children addressed to the judge, and the parents have not been contacted and allowed to respond. The better course of action, if a complaint raising questions about a child's safety and welfare reaches the judge, is to contact the county child welfare agency which is statutorily required to investigate such matters and is better equipped to handle emergencies."

TPR Appeals - No Merit Reports - Time Limits

Brown County v. Edward C.T., No. 98-0075-NM (ordered published 29 April 1998)

Counsel for Edward C.T. filed a no merit report from an order terminating Edward's parental rights. The court of appeals required the no merit report to address the applicability of the no merit procedure to a TPR appeal. In this per curiam opinion, the court of appeals concluded that a no merit report may be filed in a TPR appeal within the time set by Wis. Stat. section (Rule) 809.107. A no merit report may be filed where, as in this case, the notice of intent and the notice of appeal were timely filed under Rule 809.107(2) and (5) and the no merit report was filed within the time set for filing the appellant's brief under Rule 809.107(6)(a). Upon the timely filing of a no merit report, the court of appeals will allow 10 days for the parent to file a response to the report.

Child Support - Reductions - "Serial Family Payers"

State v. Jeffrie C.B., No. 97-2453 (filed 31 March 1998) (ordered published 29 April 1998)

In 1993 a court ordered Jeffrie to pay 17 percent of his gross income as child support. The court was unaware of a previous child support order in a separate paternity case requiring him to pay 17 percent of his gross income. In 1997 a judge granted Jeffrie's motion to reduce his child support at the lesser rate (14 percent) for a "serial family payer." The court also retroactively revised its child support order so that Jeffrie's arrearages reflected the 14 percent rate.

The court of appeals, in an opinion written by Judge Cane, reversed. The sole issue on appeal concerned the court's authority to reduce accrued child support arrearages retroactively. Under section 767.32(1m) of the Wisconsin Statutes a trial court cannot "retroactively revise the amount of child support due or the amount of arrearages in child support except to correct previous errors in calculation." The Legislature intended that such revisions be restricted to "mathematical errors only."

Motion to Quash Writ - Appearance of Confined Petitioner by Telephone - Responsibility for Making Arrangements for Telephonic Appearance

State ex rel. Christie v. Husz, No. 97-0807 (filed 25 Feb. 1998) (ordered published 29 April 1998)

The petitioner contended before the court of appeals that the trial court erred when it dismissed her writ of habeas corpus because she failed to appear at the motion hearing. She claimed that her failure to appear was due to her incarceration, was not her fault, and that the trial court should have made the necessary arrangements for her to appear.

In a decision authored by Judge Brown, the court held that in an action involving a prisoner acting pro se, if the court concludes that a hearing is necessary and that a teleconference will suffice, it is the responsibility of the trial court to ensure that the pro se prisoner has access to a telephone at the time of the hearing. The court limited its holding to pro se prisoners. If a prisoner is represented by counsel, the prisoner's attendance, either in person or by telephonic means, may not be necessary. Moreover, if the prisoner is represented by counsel and the prisoner's appearance is necessary, and if it is determined that appearance by telephone will be satisfactory, it should be counsel's obligation to make the arrangements for the appearance. If counsel experiences problems in arranging for telephonic appearance, he or she can always seek the court's aid.

The appellate court also addressed motion practice in habeas corpus proceedings, distinguishing motions to quash from returns to the writ. A motion to quash the writ challenges the sufficiency of the petition for the writ. The court will only quash the writ if the facts pled in the petition, when accepted as true, are insufficient to entitle the petitioner to the relief sought. [Of course, a prisoner who merely makes conclusory allegations regarding his or her confinement cannot survive a motion to quash. A habeas corpus petition containing merely loose allegations which fail to show how, if true, the petitioner is wrongfully detained is defective.]

A motion to quash is not the proper procedural tool with which to raise factual disputes in a habeas corpus proceeding. If raising factual disputes is the goal, then a return to the writ should be filed, which the petitioner can then traverse, thus raising an issue of fact for trial.

UM Coverage - Made Whole

Calbow v. Midwest Security Ins. Co., No. 97-2457 (filed 4 March 1998) (ordered published 29 April 1998)

Calbow was injured when an uninsured motorist crashed into a fire truck which in turn collided with Calbow's vehicle. The Calbows sued the municipality. Eventually they settled for $250,000 and executed a Pierringer release. Calbow later filed a claim with his insurer under his uninsured motorist (UM) coverage.

The court of appeals, in an opinion written by Judge Anderson, affirmed a trial court order that enforced the insurance policy's reducing clause in favor of the UM insurer. An arbitrator's panel established the Calbow's total damages as $131,000. Invoking the reducing clause prevented a "double recovery"; the purpose of UM coverage is not to provide a "fully compensated party with a windfall."

Movement of Protectively Placed Person from One County to Another - Relitigation of Residence

Juneau County v. Sauk County, No. 97-1365 (filed 12 March 1998) (ordered published 29 April 1998)

In 1985 a Juneau County court appointed Robin S. as the Wis. Stat. chapter 55 guardian of the person and the estate of her developmentally disabled adult brother Jeffrey. At that time, both Robin and Jeffrey were living in Juneau County. Over the following decade, the Juneau County Department of Human Services placed Jeffrey in a variety of locations within that county, including his mother's home, adult foster homes, and community-based residential facilities (CBRFs). However, in 1996, after Robin moved to Sauk County, she arranged to have her brother moved to a group home CBRF located in Sauk County.

Juneau County subsequently filed a motion seeking to change Jeffrey's county of residence for his protective placement to Sauk County and thus relieve itself of further supervisory and financial responsibilities for his care. The circuit court denied the motion based on its conclusion that Wis. Stat. section 51.40(2)(a) precludes any change of residence for protectively placed persons who reside in CBRFs.

The court of appeals, in a decision authored by Judge Roggensack, reversed. The issues before the court were whether a Wisconsin county is barred, either by section 51.40(2)(a) or the doctrine of claim preclusion, from relitigating the question of a protectively placed person's residence after that person's guardian has moved to another Wisconsin county and relocated the person into a CBRF in that same county. The court concluded that residency may be reexamined in such circumstances.

Adverse possession - 20-year time period

Harwick v. Black, No. 97-1108 (filed 12 March 1998) (ordered published 29 April 1998)

This case concerns the law of adverse possession and an action to quiet title. Wis. Stat. section 893.25 provides that, with certain exceptions, "an action for the recovery or the possession of real estate and a defense or counterclaim based on title to real estate are barred by uninterrupted adverse possession of 20 years." Case law establishes that the person claiming adverse possession must show that the disputed property was used for the requisite period of time in an open, notorious, visible, exclusive, hostile, and continuous manner that would apprise a reasonably diligent landowner and the public that the possessor claimed the land as his or her own.

The issue before the court of appeals was whether the 20-year time period of adverse possession must occur immediately preceding the filing of a court action. In an opinion authored by Judge Dykman, the court answered in the negative. Adverse possession for any 20-year time period is sufficient to establish title in the adverse possessor. Title to the disputed land vests at the close of the limitation period and the title of the original owner of the disputed land is extinguished at that time. Further, said the court, one claiming adverse possession need not be in possession of the disputed property at the time the action is filed.

Dog Bite - Landlords - Common Law Negligence - "Harborer" Under Section 174.02(1)

Malone v. Fons, No. 96-3326 (filed 17 March 1998) (ordered published 29 April 1998)

Fons owned a building in which a tenant's dog bit the plaintiff, an 8-year-old girl. The plaintiff sued Fons. The circuit court granted summary judgment dismissing the complaint.

The court of appeals, in an opinion written by Judge Curley, affirmed. First, the court held that Fons was not liable under the common law of negligence. Relying on Gonzales v. Wilkinson, 68 Wis. 2d 154 (1975), the court concluded: "(1) the relevant statements in Gonzales were not a dicta, but rather, expressed the court's holding; (2) according to the plain language of Gonzales, Fons is not liable, on common law negligence grounds, for the bite which Sarah received from Fons' tenant's dog; and (3) [other named cases have not] modified Gonzales' holding as it relates to the facts of this particular case."

Second, the court rebuffed the argument that Fons had "harbored" the dog and thus was strictly liable under section 174.02 of the Wisconsin Statutes. The "mere fact that Fons' tenants' dog had been on the premises that Fons leased to the [tenants] for a lengthy period of time does not make Fons a harborer of his tenant's dog."

Finally, the court rejected the argument that the plaintiff was a third-party beneficiary of a "contract," or a misrepresentation to the tenant, that legally obligated Fons to provide liability insurance for his tenant. The "misrepresentation theory" lacked sufficient merit to consider. And as a matter of law based on the facts of record, Fons did not offer to provide liability insurance for the tenant; thus, there was no contract under which the plaintiff could benefit.

Safe Place Statute - Security Systems

Naaj v. Aetna Ins. Co., No. 96-3640 (filed 31 March 1998) (ordered published 29 April 1998)

A food store leased a building from the defendant owner. The plaintiff, an employee, was struck by an unruly customer. The complaint alleged that the owner violated the safe place statute, Wis. Stat. section 101.11, by failing to install a security system of some sort in a building that was located in a "high-crime area."

The court of appeals, in an opinion written by Judge Wedemeyer, affirmed the trial court's grant of summary judgment in favor of the owner. The safe place statute is restricted to the building's "structural composition." A safety system that protects employees from crime is not part of the building's structure.

This column summarizes all decisions 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.