Attorney Fees
Fee Shifting – Assignments
Betz v. Diamond Jim’s Auto Sales, 2014 WI 66 (filed 15 July 2014)
HOLDING: The plaintiff’s counsel could not assert a claim for attorney fees under a fee-shifting statute against a defendant in a situation in which his client and the defendant privately settled the lawsuit; his client had not assigned him these rights.
SUMMARY: Betz bought a used car from a used car dealer, Diamond Jim’s. After numerous problems with the car, Betz retained a lawyer, Megna, and brought claims against the car dealer. The underlying statutes included fee-shifting provisions, Wis. Stat. sections 100.18(11)(b)2. and 218.0163(2). Without Megna’s knowledge, Betz privately settled his lawsuit with the dealer’s general manager in a way that circumvented the fee-shifting statute. Megna filed various motions in an effort to hold the car dealer to the fee-shifting statutes. The circuit court ruled that any right to recover fees belonged to Betz, not his lawyer (Megna). It also ruled that Betz’s settlement was binding. In a published decision, the court of appeals reversed, voiding the settlement on public policy grounds. See 2012 WI App 131.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The supreme court reversed in a majority opinion authored by Justice Ziegler. Fee-shifting statutes are “vital” (¶ 28) in protecting various rights and inducing lawyers to take on cases that carry “a significant risk that they will not be paid…” (¶ 29). Such fees, however, “belong to the client and not the attorney” (¶ 30). Adopting a standard used by the Seventh Circuit, the court held that “if the parties enter into a private settlement without the involvement of counsel, and the settlement fails to provide for statutory attorney’s fees, the defendant may be found responsible for plaintiff’s attorney’s fees only when the client assigned his or her right to recover statutory attorney’s fees to the attorney and the defendant had notice of the assignment” (¶ 35).
“A fee agreement is a contract” (¶ 38). Applying “traditional principles of contract law,” the court held that Megna’s fee agreement did not assign his law firm the client’s rights to attorney fees (¶ 43). Nor was Megna entitled to those fees under principles of equitable subrogation (see ¶ 46). Finally, the court observed that Megna could proceed against Betz, his client, to recover attorney fees and costs (see ¶ 47). It cautioned attorneys to “clearly draft a fee agreement so that it unambiguously assigns the client’s statutory right to recover attorney’s fees from the defendant under these circumstances” (¶ 49).
Chief Justice Abrahamson dissented on grounds that the majority failed to apply the very “traditional principles of contract law” on which it ostensibly relied in construing the fee agreement (¶ 56). She concluded that “the majority opinion simply decrees, ipse dixit, that the language of the fees agreement does not mean what it says” (¶ 60).
Justice Roggensack did not participate in this case.
Civil Procedure
Pleading – Plausible Facts – Twombly “Rule”
Data Key Partners v. Permira Advisers LLC, 2014 WI 86 (filed 23 July 2014)
HOLDING: A complaint failed to plead plausible facts supporting a claim that withstood the “business-judgment” rule.
SUMMARY: This lawsuit arose from the merger and sale of a publicly traded company, Renaissance Learning Inc. The Pauls, who founded the company and were the majority shareholders, sold to Permira despite a “bidding war” fostered by other potential buyers. The plaintiffs are various individuals and entities with interests in Renaissance who claim, essentially, that the Pauls sold too cheaply. The circuit court dismissed the complaint, ruling that it failed to state a claim for which relief can be granted chiefly because the business-judgment rule shielded the directors and the Pauls violated no legal duties. The court of appeals reversed in part, finding sufficient facts to survive a motion on the pleadings. See 2013 WI App 107.
The supreme court reversed in a majority opinion, authored by Justice Roggensack, that is significant on two levels. First, the court held that Wis. Stat. section 802.02(1) is governed by the same standards applied to pleadings in federal courts, namely, the doctrine originating from Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “Bare legal conclusions” alleged in a complaint will not suffice. “Plaintiffs must allege facts that, if true, plausibly suggest a violation of applicable law” (¶ 21).
The Twombly case is explained in some detail. “In sum, Twombly makes clear the sufficiency of a complaint depends on substantive law that underlies the claim made because it is the substantive law that drives what facts must be pled. Plaintiffs must allege facts that plausibly suggest they are entitled to relief” (¶ 31).
Second, the court applied its Twombly approach to the complaint and found it wanting with respect to whether the directors breached their fiduciary duty. In particular, the business-judgment rule, which is set forth in Wis. Stat. section 180.0828, limits director liability. Plaintiffs “must plead facts sufficient to plausibly show that the directors’ actions” violated various statutory tests, which are explained in the opinion (see ¶ 39). The plaintiffs’ complaint failed to meet this standard (see ¶¶ 44, 56). Nor did the “majority shareholders,” the Pauls, breach any duty to minority shareholders based on the complaint’s allegations (see ¶ 58).
Chief Justice Abrahamson dissented; she was joined by Justice Bradley and Justice Crooks. The Chief Justice’s dissent takes the form of a majority opinion that, she contends, the court should have written in this case. The dissent excoriates the majority for engrafting the Twombly-Iqbal “standard” onto Wisconsin law, noting that these cases “have created confusion and chaos in the federal courts regarding the current state of pleading requirements” (¶ 69).
“No Wisconsin case has adopted the rule as stated in Twombly and Iqbal [Ashcroft v. Iqbal, 556 U.S. 662 (2009)]. Twombly was not argued or briefed in the instant case. The majority opinion relies on the Twombly heightened pleading standard without any briefing or argument. I have written before that this court should give counsel the opportunity to develop arguments before the court in the adversarial system” (¶ 70).
Missing Witnesses – Prejudicial Error
Kochanski v. Speedway SuperAmerica LLC, 2014 WI 72 (filed 17 July 2014)
HOLDING: The circuit court’s reading of the missing-witness instruction was prejudicial error.
SUMMARY: Kochanski slipped on ice and snow at a Speedway station while buying gas. He sued Speedway under both negligence and safe-place statute claims. The trial judge read a missing-witness instruction based on Speedway’s omission to call some former employees who had been working at the time of Kochanski’s fall. A jury returned a verdict for approximately $300,000. In an unpublished decision, the court of appeals reversed, holding that the record did not support the missing-witness instruction.
The supreme court affirmed in an opinion authored by Justice Roggensack. The majority opinion explains the elements of and policy behind the missing-witness instruction while also observing that some jurisdictions have eliminated the instruction (see ¶ 22). The missing-witness instruction creates a permissive inference, not a presumption, and is only appropriate in situations in which the witness could likely offer “material” testimony, it would be more natural for one party to call that witness, and the circumstances reflect that this party is “unwilling” to produce the witness for trial.
The record in this case, the majority held, did not support the instruction. For example, there was no showing that the former employees were “peculiarly under Speedway’s control” (¶ 25) and it also appeared that Kochanski might have known their whereabouts (see ¶ 26). Finally, the court found that on these facts the error in reading the instruction was so prejudicial that it warranted a new trial, especially as the instruction effectively “substitute[d]” for evidence (¶ 48).
Justice Bradley dissented, joined by Chief Justice Abrahamson. They contended that the majority failed to grant the circuit court appropriate deference, and any error was harmless.
Justice Prosser also dissented, because of “troubling issues of appellate review” (¶ 110). The majority, he says, “is second-guessing the circuit court’s decision to give the absent witness instruction in several ways that are inappropriate” (¶ 132).
Creditor-Debtor Law
Liens – Supplemental Proceedings
Associated Bank N.A. v. Collier, 2014 WI 62 (filed 15 July 2014)
HOLDING: Supplemental proceedings under Wis. Stat. chapter 816 are a discovery tool that does not create a “blanket lien” on the debtor’s personal property.
SUMMARY: “This case concerns SB1’s attempt to satisfy the portion of a default judgment against Collier that it purchased from Associated Bank N.A. The relevant portion of the judgment relates to Collier’s default on a $7.2 million promissory note in favor of Associated, which Collier secured with a personal guarantee and a mortgage on a Brookfield property” (¶ 5). Another entity, Decade, owned by Collier’s “associate,” also sought Collier’s personal property based on a judgment. Decade served Collier with an order to appear for a supplemental proceeding, which was held in late 2010. A docketing error by the clerk, however, meant that Decade’s judgment was not docketed until June 2011. The circuit court rejected Decade’s contention that the failure to enter the judgment in the judgment and lien docket did not affect the validity of its lien. It ruled that SB1’s interest in Collier’s personal property was superior (see ¶ 18). In an unpublished decision, the court of appeals affirmed.
The supreme court, in a majority decision authored by Justice Roggensack, affirmed the court of appeals with the modification that nothing “be read to recognize a blanket lien giving any one unsecured judgment creditor the exclusive right to pursue collection from all of a debtor’s personal property, simply due to service of an order to appear for supplemental proceedings” (¶ 20). The opinion discusses supplemental proceedings under Wis. Stat. chapter 816, liens, docketing judgments, and levying.
“Accordingly, it must be recognized that service of an order to appear for supplemental proceedings will not create an interest that is superior to the interest of a docketed judgment creditor who has levied specific personal property of the debtor. Merely serving an order to appear for supplemental proceedings also will not create a common law lien on the debtor’s personal property nor will it give a judgment creditor an interest superior to that of a secured creditor who has timely proceeded according to the directives of Wis. Stat. ch. 409” (¶ 45). A contrary rule, reasoned the court, would “eviscerate” statutory collection proceedings. The majority’s many points are captured at paragraphs 53-58.
Chief Justice Abrahamson, joined by Justice Bradley, dissented. They contend that “our courts have recognized for the last 150 years a judgment creditor’s common-law equitable lien, superior to other creditors, created by service of notice of a supplementary proceeding upon a judgment debtor on the debtor’s non-exempt personal property. In the real world, creditors and debtors have relied upon this judgment creditor’s common-law equitable lien” (¶ 63). “In writing the common-law creditor’s lien out of Wisconsin legal history, the majority opinion mischaracterizes or ignores existing case law” (¶ 69).
Justice Prosser did not participate in this case.
Assignments – Priority
Attorney’s Title Guaranty Fund Inc. v. Town Bank, 2014 WI 63 (filed 15 June 2014)
HOLDING: Proceeds of a debtor’s legal-malpractice claim were assignable as loan collateral, with priority running to the creditor that perfected its security interest before another creditor obtained a superior interest by levy.
SUMMARY: Two creditors, Heartland and Town Bank, fought over the right to the proceeds of a debtor’s legal-malpractice claim. Heartland filed a financing statement for its security interest in the proceeds even before the lawsuit was settled (see ¶ 4). The legal-malpractice carrier filed this action to determine which creditor had a superior interest in the settlement proceeds. The circuit court ruled in favor of Town Bank and, in a published decision, the court of appeals affirmed. See 2013 WI App 6.
The supreme court reversed in a majority opinion, authored by Justice Roggensack, that applies the court’s holdings in Associated Bank N.A. v. Collier, 2014 WI 62, decided the same day. Two issues were before the court: “(1) whether the potential proceeds from a legal malpractice claim can be lawfully assigned as security for a contemporaneously incurred debt; and (2) whether such proceeds were future property at the time of the 2006 supplemental examination Town Bank conducted” (¶ 12).
First, the court held that proceeds from legal malpractice claims are assignable as collateral for contemporaneously incurred debts. Such assignments do not contravene public policy (see ¶ 24). Second, Town Bank as a judgment creditor did not have a blanket lien on all personal property of the judgment debtor such that it precluded other creditors from pursuing collection.
“This is so because if a judgment creditor could obtain a superior blanket lien on all of a debtor’s personal property, the debtor would not have unencumbered non-exempt personal property to offer as security for a loan, which may be necessary to continue the debtor’s business and pay its debts. In other words, a potential lender could not acquire a superior security interest in any non-exempt personal property of a debtor who has an unsatisfied judgment against him or her and who has been served with notice to appear at supplemental proceedings. This would discourage lending to judgment debtors. It would thereby conflict with one of the policies underlying Wis. Stat. ch. 409: to provide financing to distressed debtors through a system of secured transactions” (¶ 44).
Chief Justice Abrahamson and Justice Bradley filed separate dissenting opinions in which each joined. The Chief Justice agreed that proceeds from a legal-malpractice claim were assignable but dissented based on her dissent in Associated Bank. Justice Bradley wrote separately to voice concern “with this court’s recent trend in sua sponte expanding the issues before it” (¶ 52).
Criminal Procedure
Search and Seizure – Consent Search of Automobile – Passenger’s Briefcase
State v. Wantland, 2014 WI 58 (filed 11 July 2014)
HOLDING: The search of a passenger’s briefcase was reasonable after the driver voluntarily consented to a search of the vehicle in which the briefcase was located, even though the passenger asked “Got a warrant for that?” before the briefcase search.
SUMMARY: The driver of a vehicle voluntarily consented to a police officer’s search of the car and did not limit the scope of the consent. During the search, the officer found a briefcase belonging to a passenger, Wantland. The briefcase was not locked or otherwise secured. Before the police officer examined the briefcase, Wantland asked, “Got a warrant for that?” The officer proceeded to search the briefcase and found controlled substances in it. In the subsequent criminal prosecution, Wantland moved to suppress the evidence found in his briefcase. The circuit court denied the motion. In a published decision, the court of appeals affirmed. See 2013 WI App 36. In a majority decision authored by Justice Ziegler, the supreme court affirmed the court of appeals.
The defendant argued that he asserted ownership of the briefcase and withdrew the driver’s consent to search by asking “Got a warrant for that?” The supreme court disagreed. “Withdrawal of consent need not be effectuated through particular ‘magic words,’ but an intent to withdraw consent must be made by unequivocal act or statement” (¶ 33) (internal quotation marks omitted). In this case “Wantland’s inquiry ‘Got a warrant for that?’ was equivocal, such that it did not clearly withdraw the otherwise valid consent … of the driver” (¶ 35).
“Such a question may constitute an inquiry regarding the officer’s lawful authority to search the briefcase, but it is far from an unequivocal withdrawal of consent” (¶ 42). The defendant never made any statement to the effect that the briefcase was not to be searched
(see ¶ 43). “[A] reasonable person considering the totality of the circumstances would not understand Wantland’s inquiry to be an unequivocal withdrawal of consent. Thus, [the deputy’s] search of the briefcase was reasonable” (¶ 44) (internal citations omitted).
The defendant also argued that in circumstances in which ownership or authority over a closed container is unclear, police officers are under a duty to make further inquiry to resolve the ambiguity before proceeding to a search. The supreme court responded that “[w]e conclude that law enforcement is not under such a duty to further inquire” (¶ 45). “Once valid consent for a search has been secured, law enforcement officers are not required to halt their search and question whether consent is still valid every time a person makes an ambiguous statement regarding the ownership of an item that is otherwise within the scope of that consent” (¶ 47).
Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley. Justice Prosser filed a dissenting opinion that was joined by the Chief Justice and by Justice Bradley.
Ineffective Assistance of Counsel – Failure to File Notice of Intent to Pursue Postconviction Relief – Challenge by Writ of Habeas Corpus Filed in the Court of Appeals
State ex rel. Kyles v. Pollard, 2014 WI 38 (filed 17 June 2014)
HOLDING: The proper forum in which to challenge the effectiveness of trial counsel for failing to file a notice of intent to pursue postconviction relief lies in the court of appeals, and the vehicle for obtaining that relief is a writ of habeas corpus.
SUMMARY: A defendant who is convicted has a statutory right to seek postconviction relief through a postconviction motion or an appeal. The process begins with the filing with the circuit court of a notice of intent to seek postconviction relief. It is the duty of the defendant’s trial counsel to file the notice of intent if the defendant wants to seek postconviction relief. Counsel must file the notice within 20 days after sentencing. However, the court of appeals may, on its own motion or a showing of good cause, extend the time for filing the notice.
In this case the defendant claimed that his trial counsel was ineffective for failing to file a notice of intent to pursue postconviction relief. Determining the appropriate forum and identifying the vehicle for relief were the crucial issues to be decided on this appeal. In a unanimous decision authored by Justice Bradley, the supreme court concluded that “the court where the alleged ineffective assistance of counsel occurred is the proper forum in which to seek relief unless that forum is unable to provide the relief necessary to address the ineffectiveness claim. The remedy for an attorney’s failure to file a notice of intent to pursue postconviction relief is an extension of the timeframe to file the notice. Because the circuit court is without authority to extend the deadline to file a notice of intent to pursue postconviction relief, we conclude that the proper forum here lies in the court of appeals. We also conclude that where such a claim is made to the court of appeals it should be in the form of a habeas petition pursuant to [State v.Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992)]” (¶ 58).
Sentencing – Double Jeopardy – Increasing a Previously Imposed Sentence
State v. Robinson, 2014 WI 35 (filed 10 June 2014)
HOLDING: The circuit court did not violate double jeopardy protections when it increased the defendant’s sentence one day after the original sentencing proceeding.
SUMMARY: A Milwaukee County circuit court judge sentenced the defendant on several counts. The next day the court sua sponte recalled the case and increased the sentence by nine months. The judge explained that he was increasing the sentence – not upon reflection – but instead because he was under a mistaken impression about the length of sentences that a Waukesha County circuit court judge had recently imposed on the defendant (see ¶ 15).
The defendant argued that the resentencing violated both state and federal constitutional protections against double jeopardy because she had a legitimate expectation of finality in her original sentence. In a per curiam opinion, the court of appeals affirmed. In a majority decision authored by Justice Gableman, the supreme court affirmed the court of appeals.
In United States v. DiFrancesco, 449 U.S. 117 (1980), the U.S. Supreme Court held that if a defendant has a legitimate expectation in the finality of his or her sentence, then an increase in that sentence violates double jeopardy (see ¶ 2 n.3). In State v. Jones, 2002 WI App 208, 257 Wis. 2d 163, 650 N.W.2d 844, the court of appeals, in light of DiFrancesco, provided a framework for analyzing whether a defendant’s right to be free from double jeopardy has been violated when he or she is resentenced after an original sentence has been imposed (see ¶ 31). The Jones court concluded that “whether a defendant has a legitimate expectation of finality is ‘the analytical touchstone of double jeopardy…, which may be influenced by many factors, such as the completion of the sentence, the passage of time, the pendency of an appeal, or the defendant’s misconduct in obtaining sentence’” (¶ 32) (citation omitted).
In yet another case the supreme court emphasized that a significant factor in determining that the circuit court acted appropriately in resentencing the defendant was that “the justice system as a whole had not yet begun to act upon the circuit court’s sentence” (¶ 39). SeeState v. Gruetzmacher, 2004 WI 55, 271 Wis. 2d 585, 679 N.W.2d 533.
In the present case, the majority concluded that the increase in the defendant’s sentence did not violate double jeopardy. “[W]e reaffirm today the approach set forth in Jones and adopted by this court in Gruetzmacher as the appropriate framework for determining whether a defendant has a legitimate expectation of finality” (¶ 43).
Applying this framework, the court recounted that “[the Milwaukee County judge] noticed he had misunderstood Robinson’s prior criminal record during the original sentencing hearing on the same day it occurred and scheduled a new sentencing hearing for the following day. This was not a case where the circuit court judge decided, after further deliberating on the initial sentence imposed, that a different sentence length was more appropriate. Here, as [the circuit judge] explained on the record, he misunderstood Robinson’s lengthy criminal record, failed to sentence Robinson in a way that matched his intention, and acted to remedy the error as expeditiously as possible” (Id.). The circuit court notified the parties that it had made a mistake regarding Robinson’s original sentence and corrected the sentence one day later, before any judgment of conviction had been entered (see ¶ 39).
The majority did not address the effect of the “reflection doctrine” in this opinion, and this drew criticism from the dissenters. The reflection doctrine prohibits a court from changing a sentence on mere reflection or simply because it has second thoughts about the original sentence. See, e.g., State v. Foellmi, 57 Wis. 2d 572, 205 N.W.2d 144 (1973). The majority explained its decision in this regard by noting that the reflection doctrine was beyond the scope of the double jeopardy issue the defendant raised in her petition for review (see ¶ 50).
Justice Prosser filed a concurring opinion. Chief Justice Abrahamson filed a dissenting opinion that Justice Bradley joined.
NGI Procedures – Expert Testimony – Dismissal of NGI Plea
State v. Magett, 2014 WI 67 (filed 16 July 2014)
HOLDING: A judge properly dismissed the defendant’s NGI plea before the start of the insanity phase of trial because of insufficiency of evidence.
SUMMARY: Magett, a prisoner, was charged with battery by a prisoner after a fight with corrections officers in prison. Magett entered pleas of not guilty and not guilty by reason of mental disease or defect (NGI). A jury found him guilty of battery by prisoner in the first (guilt) phase of the trial. Before the start of the second (responsibility) phase of the trial, the judge dismissed the NGI plea, essentially because Magett lacked sufficient evidence to raise a jury issue on his mental responsibility. The court of appeals held in an unpublished opinion that any error in not conducting the second phase of the trial was harmless.
The supreme court affirmed in a majority opinion authored by Justice Prosser. The opinion is necessarily fact intensive, revolving around the sufficiency of evidence. The second phase of a bifurcated NGI trial more closely resembles a civil trial than a criminal trial (see ¶ 39). After reviewing the history of the state’s bifurcated NGI process and the definition of mental responsibility, the court first held that a defendant is not required to present expert testimony supporting the NGI plea in all cases.
“This is not to say that expert testimony is never required in the responsibility phase of a trial; however, there are instances in which lay testimony will be enough to satisfy the defendant’s burden” (¶ 43). Thus, a defendant may rely on lay testimony, including his own, although “it is highly unlikely that a defendant’s own testimony, standing alone, will be sufficient to satisfy the burden of proof” (¶ 47).
Second, Magett was competent to testify about his own mental state. Nonetheless, such lay opinions are subject to the circuit court’s discretion under Wis. Stat. section 907.01 and any error in preempting Magett’s opinion in this case was harmless. Third, Magett “raise[d] valid points” in complaining about the dismissal of the NGI plea before the second (responsibility) phase had begun (¶ 65). Case law supported the dismissal of NGI pleas after the defense had presented its evidence (see ¶ 63). “Because any error in the timing was harmless, however, we note only that it is preferable, fairer, and more judicious to allow a defendant to put on his evidence in the responsibility phase before dismissing the NGI defense” (¶ 65).
Chief Justice Abrahamson dissented, joined by Justice Bradley. They contended that reversible error occurred when the trial judge preemptively denied Magett the opportunity to present evidence in the second phase: “given the choice, the majority opinion opts to endorse the less preferable, less fair, and less judicious procedure here” (¶ 77).
Search and Seizure – Confidential Informant’s Testimony
State v. Nellessen, 2014 WI 84 (filed 23 July 2014)
HOLDING: The defendant failed to make an adequate showing that would justify the disclosure of a confidential informant’s identity in a drug case.
SUMMARY: Nellessen was stopped by police officers, who searched the car she was driving and discovered marijuana. She claimed that she had no knowledge of the drug’s presence in the car. When she later learned that the stop was based on a tip from a confidential informant, Nellessen moved for disclosure of the informant’s identity pursuant to Wis. Stat. section 905.10. The circuit court denied her motion to compel disclosure, ruling that she had not produced enough evidence to justify an in camera review (see ¶ 10). In a published decision, the court of appeals reversed on this issue. See 2013 WI App 46.
The supreme court reversed the court of appeals in a majority opinion authored by Justice Gableman. The court discussed Wis. Stat. section 905.10 and the showing necessary to trigger an in camera review. It “reaffirm[s]” language from a prior case [State v. Outlaw, 108 Wis. 2d 112, 321 N.W.2d 145 (1982)] that the initial burden of a defendant seeking disclosure of the identity of a confidential informer is “light indeed” (¶ 25). Nonetheless, a defendant must show a reasonable possibility founded in evidence, not speculation, that the informant’s testimony is necessary to the defense (see ¶ 32). The circuit court properly denied the motion in this case because Nellessen failed “to articulate why or how the informer would have any knowledge of what Nellessen knew or did not know about the marijuana in her car” (¶ 34). Her showing, then, rested on “mere speculation” (id.).
Justice Bradley dissented, joined by Chief Justice Abrahamson. They contended that the majority erred in applying the disclosure test: “(1) it appears to up the ante of the necessary showing for those seeking an in camera review and (2) it conflates the showing necessary to get an in camera review with what a court must determine after the review has occurred” (¶ 38).
Probation Search – Computer
State v. Purtell, 2014 WI 101 (filed 1 Aug. 2014)
HOLDING: A probation agent’s search of the defendant’s computer was lawful.
SUMMARY: Purtell was on probation for offenses relating to animal abuse, which involved, in part, his computer. As a condition of probation, Purtell was not to possess or use a computer without explicit agency approval. A probation agent learned that Purtell had a computer. A warrantless search of the computer revealed sexual images involving animals and some images of underage children. Police officers obtained search warrants for Purtell’s computer equipment and found videos and still images of children engaged in sex acts. Purtell was charged with four counts of possessing child pornography. The circuit court denied his motion to suppress evidence. In an unpublished decision the court of appeals reversed, finding that the probation search was unlawful and tainted the later search warrants.
The supreme court reversed the court of appeals, thus upholding the warrantless search, in a majority opinion authored by Justice Gableman. Purtell contended that although the agent was authorized to seize his computer, she could not search its contents without a warrant. The court disagreed. “As a threshold matter, it is difficult to imagine a scenario where a probation agent would lack reasonable grounds to search an item the probationer is explicitly prohibited from possessing” (¶ 28). Purtell’s expectation of privacy in the computer’s contents was “diminished” not only because he was on probation but because he was forbidden from even possessing and using computers. The opinion discusses Purtell’s “background,” known to the agent, of “befriending underage girls” online (¶ 32). In short, the agent’s warrantless search was reasonable.
Justice Bradley dissented, joined by Chief Justice Abrahamson. The dissent distinguished the authority to seize the computer from the “license to search its contents without a warrant” (¶ 37).
Seizure of the Person – Officer’s Knock on the Window of Occupied Vehicle
County of Grant v. Vogt, 2014 WI 76 (filed 18 July 2014)
HOLDING: Under the facts and circumstances of this case, an officer’s knock on the window of an occupied vehicle did not constitute a seizure of the occupant.
SUMMARY: The issue in this case was whether, under the totality of the circumstances, a law enforcement officer “seized” the defendant, Vogt, by knocking on the driver’s-side window of Vogt’s parked vehicle and asking Vogt to roll down the window. When Vogt complied, the officer immediately smelled alcohol in the vehicle and noticed Vogt’s slurred speech. The officer then investigated and ultimately arrested Vogt for operating a vehicle while intoxicated (OWI).
When the officer knocked on the window, he had neither probable cause nor reasonable suspicion to believe that Vogt had committed an offense. The defendant thus moved to suppress all evidence obtained during what he claimed was an unlawful detention. The circuit court denied the motion, and Vogt was convicted following a trial. In an unpublished decision, the court of appeals reversed.
In a majority opinion authored by Justice Prosser, the supreme court reversed the court of appeals. “Although we acknowledge that this is a close case, we conclude that a law enforcement officer’s knock on a car window does not by itself constitute a show of authority sufficient to give rise to the belief in a reasonable person that the person is not free to leave. The objective of law enforcement is to protect and serve the community. Accordingly, an officer’s interactions with people are not automatically adversarial. A court’s ‘seizure’ inquiry into one of these interactions must examine the totality of the circumstances, seeking to identify the line between an officer’s reasonable attempt to have a consensual conversation and a more consequential attempt to detain an individual. The facts in this case do not show a level of intimidation or exercise of authority sufficient to implicate the Fourth Amendment until after Vogt rolled down his window and exposed the grounds for a seizure” (¶ 3).
The facts to which the majority referred began when a uniformed deputy saw the defendant pull into the parking lot next to a closed park in the village of Cassville at about 1 a.m. The deputy thought the driver’s conduct was suspicious. He pulled his marked squad car behind Vogt’s vehicle; the squad car’s headlights were on but its red and blue emergency lights were not. The deputy claimed his squad was not blocking the car and that the driver could have left. Although Vogt disagreed with this characterization, the supreme court found that the record supports the assumption that Vogt had room to leave. The deputy knocked on the window, Vogt rolled it down, and the discovery of evidence supporting the OWI arrest followed.
Said the majority, “[a]lthough it may have been Vogt’s social instinct to open his window in response to Deputy Small’s knock, a reasonable person in Vogt’s situation would have felt free to leave. As several jurisdictions have recognized, a law enforcement officer’s knock on a vehicle window does not automatically constitute a seizure. The circumstances attendant to the knock in the present case are not so intimidating as to transform the knock into a seizure…. Vogt was not subject to the threatening presence of multiple officers. Deputy Small did not brandish any weapon. There is no evidence that Deputy Small touched Vogt, and as discussed above, Deputy Small did not speak in a way that would suggest Vogt was compelled to roll down the window…. [T]he facts in this case are not sufficient to demonstrate that a reasonable person would not feel free to leave. Therefore, under the totality of the circumstances, Vogt was not seized” (¶ 53).
Justice Ziegler filed a concurring opinion in which she joined the majority opinion but said she would go further to conclude that even if a seizure were to have occurred, “the officer was acting as a community caretaker at the time of the seizure” (¶ 55). Justice Roggensack and Justice Gableman joined Justice Ziegler’s concurrence. Chief Justice Abrahamson filed a dissenting opinion that Justice Bradley joined.
Postconviction Motions – Successive Motions – Wis. Stat. Section 974.06
State v. Romero-Georgana, 2014 WI 83 (filed 23 July 2014)
HOLDING: The circuit court properly denied the defendant’s Wis. Stat. section 974.06 motion because the claim of ineffective assistance of postconviction counsel was not raised in prior postconviction motions.
SUMMARY: The defendant is a native of Mexico and is not a U.S. citizen. In 2006, he pleaded no contest to one count of first-degree sexual assault of a child and was convicted. At the plea hearing, the circuit court failed to advise the defendant about the deportation consequences of his conviction, as required by Wis. Stat. section 971.08(1)(c). And, at sentencing, the circuit court failed to consider the sentencing guidelines on the record as was then required by Wis. Stat. section 973.017(2)(a) (2007-08).
The defendant’s first postconviction counsel filed a motion, under Wis. Stat. section 809.30(2)(h), seeking resentencing or sentence modification and was ultimately successful in convincing the court of appeals to order resentencing because the circuit court failed to consider the sentencing guidelines; at resentencing before a different judge, the defendant received a longer sentence.
The defendant’s second postconviction counsel filed a Wis. Stat. section 974.02 postconviction motion alleging that the first postconviction counsel was ineffective with respect to advising the defendant about the consequences of filing a judicial substitution for the resentencing; this motion was unsuccessful before both the circuit court and the court of appeals.
In yet a third postconviction motion, filed under Wis. Stat. section 974.06, the defendant for the first time raised the issue of the defective plea colloquy with respect to deportation consequences and claimed that prior postconviction counsel (without specifying which one) was ineffective for failing to raise that claim. The circuit court denied the motion without a hearing, and the court of appeals affirmed in an unpublished decision. In a majority decision authored by Justice Prosser, the supreme court affirmed the court of appeals.
The majority first concluded that “a defendant who alleges in a § 974.06 motion that his [or her] postconviction counsel was ineffective for failing to bring certain viable claims must demonstrate that the claims he [or she] wishes to bring are clearly stronger than the claims postconviction counsel actually brought. However, in evaluating the comparative strength of the claims, reviewing courts should consider any objectives or preferences that the defendant conveyed to his [or her] attorney. A claim’s strength may be bolstered if a defendant directed his [or her] attorney to pursue it” (¶ 4) (citation omitted).
The majority next held that “the defendant has not offered a sufficient reason in his third postconviction motion for failing to raise his § 974.06 claim in his second postconviction motion. Without a sufficient reason, a defendant may not bring a claim in a § 974.06 motion if that claim ‘could have been raised in a previously filed sec. 974.02 motion and/or on direct appeal.’ State v. Escalona-Naranjo, 185 Wis. 2d 168, 173, 517 N.W.2d 157 (1994). Consequently, the defendant’s claim is barred” (¶ 5).
Finally, the majority concluded that “even if the § 974.06 motion were not barred on ‘sufficient reason’ grounds, the motion does not allege sufficient facts that, if true, would entitle the defendant to relief. The defendant failed to allege that the plea withdrawal claim was clearly stronger than the resentencing claim. He does not specifically state which postconviction attorney was ineffective and instead makes an ambiguous reference to ‘postconviction counsel.’ The motion then focuses almost exclusively on trial counsel and does not provide facts regarding postconviction counsel’s performance. Consequently, the defendant’s motion falls far short of what is required, and the circuit court properly determined that he is not entitled to an evidentiary hearing” (¶ 6).
Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson.
Employment Law
Health Care Workers – Anti-Retaliation Protection – Unpaid Interns
Masri v. LIRC, 2014 WI 81 (filed 22 July 2014)
HOLDING: An intern who receives no compensation or other tangible benefits is not a health care employee entitled to protection under the anti-retaliation provisions of Wis. Stat. section 146.997.
SUMMARY: The issue in this case was whether uncompensated interns are entitled to the anti-retaliation protections of Wis. Stat. section 146.997, which is Wisconsin’s health-care-worker protection statute. Petitioner Masri was a doctoral student at the University of Wisconsin-Milwaukee when she began work as a “Psychologist Intern” in the Division of Transplant Surgery at the Medical College of Wisconsin (MCW). The MCW ended Masri’s internship after she met with an MCW administrator to report “clinical/ethical” concerns.
Masri contended that the termination of the internship violated Wis. Stat. section 146.997, which provides that certain health care employers and their employees may not take “disciplinary action against … any person” who in good faith reports violations of state or federal laws, regulations, or standards. A disciplinary action is defined as “any action taken with respect to an employee.” Wis. Stat. § 230.80(2) (emphasis added).
Masri argued that, even though she did not receive pay for her work, the receipt of other tangible benefits (an all-access badge, office space, parking, support staff, and networking opportunities) made her an employee; she also asserted that her supervisor at the MCW had promised her health insurance and financial grants-in-aid (although she never actually received those benefits, and there was no contractual guarantee of those benefits).
The Labor and Industry Review Commission (LIRC) determined that Wis. Stat. section 146.997 applies only to employees, and that as an unpaid intern, Masri was not an employee. LIRC noted that it had previously looked at compensation to determine employment status and indicated that it is possible that a worker could be an employee based on tangible benefits other than salary.
However, LIRC rejected Masri’s argument that she received tangible benefits that would make her an employee. It determined that Masri’s alleged tangible benefits – the security badge, office space, parking, and support staff – all related to her duties and had no independent value. In addition, networking opportunities were not tangible and could not be assigned value. And the fact that Masri’s supervisor told her she would have health insurance and had applied for grants was not enough to confer employee status on Masri since she never received those benefits. The circuit court affirmed LIRC’s decision and, in a published decision, the court of appeals affirmed as well. See 2013 WI App 62.
In a majority decision authored by Justice Prosser, the supreme court affirmed the court of appeals. According due weight deference to LIRC’s decision (see ¶ 20), the supreme court “agree[d] with LIRC that Wis. Stat. § 146.997 applies only to employees, a category that does not include interns who do not receive compensation or tangible benefits. As Wis. Stat. § 146.997 does not define ‘employee,’ we must give the term its ordinary meaning. After consulting the language, context, and structure of the statute, we conclude that LIRC’s interpretation is reasonable, and there is no more reasonable interpretation. Because Masri received no compensation or tangible benefits, she was not an employee of MCW and was therefore not entitled to anti-retaliation protection under § 146.997(3)(a)” (¶ 60).
Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson.
Harassment Injunctions
Protection for Institutions – Conduct Lacking a Legitimate Purpose – Protest Activities
Board of Regents-UW Syst. v. Decker, 2014 WI 68 (filed 16 July 2014)
HOLDINGS: The harassment injunction statute protects institutions as well as natural persons; there was ample evidence on which the circuit court could grant the injunction at issue in this case; and because the parties agreed that the injunction was overbroad, the matter was remanded to the circuit court to clarify the scope of the injunction.
SUMMARY: The Board of Regents of the University of Wisconsin (UW) System obtained a harassment injunction against respondent Decker, a student who had been suspended from UW–Stevens Point (UWSP). In an unpublished opinion, the court of appeals reversed the circuit court’s decision issuing the harassment injunction. In a majority opinion authored by Justice Gableman, the supreme court reversed the court of appeals.
The first issue the court considered was purely legal: Does the harassment injunction statute (Wis. Stat. section 813.125) extend protection to institutions? The court concluded that it does extend protection to institutions as well as to natural persons. “Although Wis. Stat. § 813.125(1)(b) describes harassment as ‘committing acts which harass or intimidate another person,’ Wisconsin’s general definitions statute defines a ‘person’ as including ‘all partnerships, associations and bodies politic or corporate.’ Wis. Stat. § 990.01(26) (emphasis added)” (¶ 26).
The court concluded that there is ample reason to consider the UW Board of Regents as a “body politic” (¶ 27) and, even were it not so, it is plainly structured as a “body corporate” (¶ 28).
The court next considered whether Decker’s conduct constituted harassment that could properly be enjoined under Wis. Stat. section 813.125. In that statute, harassment is defined as “[e]ngaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.” Decker argued that his conduct did not constitute harassment because he had the legitimate purpose of protesting certain fees that are imposed on UW System students.
The supreme court agreed with the circuit court that Decker’s conduct constituted harassment and lacked a legitimate purpose (see ¶ 38). “Decker cannot shield his harassing conduct from regulation by labeling it ‘protest.’ If Decker’s purpose was even in part to harass the Board of Regents, his conduct may be enjoined under Wis. Stat. § 813.125” (¶ 38).
The supreme court concluded that “there was ample evidence to support the circuit court’s factual findings and its decision to grant the harassment injunction against Decker” (¶ 39).
“The evidence presented before the circuit court demonstrated the following: first, Decker swore at and threatened the UWSP Chancellor in a meeting and stabbed the Chancellor’s documents with a pen during a heated argument. Second, Decker told the suspension committee that he had no intention of complying with his suspension, and Decker was aware his suspension prohibited him from entering UW property. Third, Decker trespassed on UW property on numerous occasions after his suspension and disrupted several university meetings. Fourth, Decker attempted to purchase a handgun immediately after police endeavored to serve him with a restraining order” (¶ 40).
Finally, the court considered whether the injunction was overbroad. Because the parties agreed that it was, the supreme court remanded the matter to the circuit court to refine the injunction and clarify its terms.
“The protected party named in the harassment injunction is the ‘Board of Regents UW System.’ However, the petition for the injunction requested protection for the ‘University of Wisconsin System’ as a whole, and the petitioner for the harassment injunction was the ‘Board of Regents – Univ. of Wisconsin System.’ In addition, the circuit court explained at the injunction hearing that Decker was restrained from contacting ‘the UW or any of its representatives.’ Consequently, it may be unclear to both Decker and law enforcement who the protected party is” (¶ 49).
Chief Justice Abrahamson and Justice Prosser filed separate concurring opinions. Justice Bradley did not participate in this case.
Insurance
Liability – Permissive Users – Duty to Defend
Blasing v. Zurich Am. Ins. Co., 2014 WI 73 (filed 17 July 2014)
HOLDING: A tortfeasor was a “permissive user” of a named insured’s vehicle when it injured her; under the policy language, the latter’s insurer has a duty to defend and indemnify the tortfeasor.
SUMMARY: Blasing was the named insured under an automobile policy issued by American Family Mutual Insurance Co. She was injured by a Menard’s employee who was loading lumber into her truck. Blasing sued Menard Inc. and its liability carrier, Zurich American Insurance Co., which in turn tendered their defense to American Family on grounds that the negligent employee was a permissive user under Blasing’s policy. The circuit court granted American Family’s motion for summary judgment but, in a published decision, the court of appeals reversed. See 2013 WI App 27.
The supreme court affirmed in a majority opinion authored by Chief Justice Abrahamson. The court held that the Menard’s tortfeasor was a permissive user under Blasing’s policy: “loading an insured pickup truck with lumber is reasonably contemplated by the insured and insurer because it is consistent with the ordinary transportation of person and goods inherent in the purpose of the pickup truck” (¶ 41). The terms of the American Family policy required it to indemnify and defend a permissive user who injures the named insured. The majority opinion poses and resolves four perceived “anomalies” that arise from this scenario, noting that “their roots are in the language of the American Family policy itself” (¶ 54).
Moreover, this holding “is not novel and has not been viewed as absurd or unreasonable in past cases” (¶ 55). Finally, the majority opinion declined to decide whether the omnibus statute, Wis. Stat. section 632.32(3), permits policies to “exclude coverage of liability for personal injuries suffered by the named insured” (¶ 66). The court explained that it would not render such an “advisory opinion based on non-existent facts” (¶ 73).
Justice Roggensack dissented, joined by Justice Ziegler and Justice Gableman, on grounds that the court should decide “that when a direct action has been commenced against the insurer of a named defendant, as is the case here, the defendant’s insurer [here Zurich] must provide the defense unless that insurer can first prove there is no coverage for any of the claims made” (¶ 76).
“Use” of Car – “Using by Guiding”
Jackson v. Wisconsin Cnty. Mut. Ins. Co., 2014 WI 36 (filed 10 June 2014)
HOLDING: A deputy sheriff standing outside a car was not “using” the car when it struck her as she assisted a motorist.
SUMMARY: While on duty at Mitchell Airport in Milwaukee, a deputy sheriff attempted to assist a “lost” motorist. The deputy gave the driver directions and then said she’d help the driver “get in traffic.” While on a pedestrian walkway, the deputy stepped in front of the car, which moved forward and struck her right leg, “almost knocking her down” (see ¶ 12). The deputy sued several parties, including her employer’s (the county’s) insurer. The circuit court granted summary judgment in favor of the insurer, finding the deputy was not “using an automobile,” but the court of appeals reversed. See 2013 WI App 65.
The supreme court reversed the court of appeals in an opinion authored by Justice Crooks. The issue was whether the deputy’s actions fell within the category of “using by guiding” as recognized by case law and other authority. The parties conceded that the deputy was an insured under the policy and acting within the scope of her employment (see ¶ 19). Using by guiding requires the following: “For example, where the driver cannot see where he is going and completely trusts the guide to direct his movements, the guide can be considered a user because the actual driver is essentially an automaton, responding solely to the guide’s directions” (¶ 8) (internal quotation marks omitted). Wisconsin case law broadly construes “using,” but there are limits on its breadth. This case was not even “a close case because everything relevant to this case happened before [the deputy] began to guide the vehicle” (¶ 39). “She was not communicating with, signaling, or exercising active control over the vehicle at the time of the injury” (¶ 40).
Justice Prosser did not participate in this case.
Motor Vehicle Law
OWI – Penalty for Seventh, Eighth, and Ninth Offenses
State v. Williams, 2014 WI 64 (filed 15 July 2014)
HOLDING: Imposition of a bifurcated sentence with a statutorily specified minimum term of confinement in prison is required when a defendant is convicted of operating a motor vehicle while intoxicated (OWI) as a seventh, eighth, or ninth offense.
SUMMARY: This case involves the penalty statute for seventh-, eighth-, or ninth-offense OWI. Wisconsin Statutes section 346.65(2)(am)6. (2009-10) classifies these crimes as Class G felonies and further provides that “[t]he confinement portion of a bifurcated sentence imposed on the person under s. 973.01 shall be not less than 3 years.” The parties agreed that if a court orders a bifurcated sentence (that is, a split sentence consisting of a term of confinement in prison followed by a term of extended supervision in the community), the court must impose a mandatory minimum period of initial confinement of three years. The issue was whether section 346.65(2)(am)6. requires a sentencing court to impose a bifurcated sentence. The circuit court concluded that imposition of a bifurcated sentence is required.
In a published decision, the court of appeals disagreed and reversed the circuit court. See 2013 WI App 74. In a majority decision authored by Justice Prosser, the supreme court reversed the court of appeals.
The majority concluded that “Wis. Stat. § 346.65(2)(am)6. requires sentencing courts to impose a bifurcated sentence with at least three years of initial confinement for a seventh, eighth, or ninth OWI offense. In reaching this conclusion, we note that although the statutory history, context, structure, and contextually manifest purposes of § 346.65(2)(am)6. suggest that it imposes a mandatory minimum period of initial confinement, the statute is ambiguous. The legislative history resolves the ambiguity and contains several clear statements that § 346.65(2)(am)6. requires courts to impose a bifurcated sentence with a mandatory minimum period of initial confinement” (¶ 47).
In a footnote, the court observed that “[d]uring the writing of this opinion, Governor Walker signed 2013 A.B. 180, which amends Wis. Stat. § 346.65(2)(am)6. See 2013 Wis. Act 224, § 4. The new law reads, ‘The court shall impose a bifurcated sentence under s. 973.01 and the confinement portion of the bifurcated sentence imposed on the person shall be not less than 3 years.’ Id. Thus, the current version of Wis. Stat. § 346.65(2)(am)6. unequivocally requires courts to impose a bifurcated sentence with a minimum period of initial confinement. 2013 Wis. Act 224 took effect on April 10, 2014” (¶ 12 n.5).
Chief Justice Abrahamson filed a concurring opinion that was joined by Justice Bradley.
Equipment Violations – Defective Tail Lamps
State v. Brown, 2014 WI 69 (filed 16 July 2014)
HOLDING: Wisconsin Statutes section 347.13(1) does not require every single light bulb in a tail lamp to be lit. Rather, the statute requires that a tail lamp emit a red light visible from 500 feet behind the vehicle during hours of darkness.
SUMMARY: Police officers stopped a vehicle because one of three light bulbs in the left rear tail light was not working. The officers then searched the vehicle and found a weapon. Brown, a passenger in the vehicle, was charged with possession of a firearm by a felon. Brown claimed the stop was unlawful and that evidence of the weapon should be suppressed. The circuit court denied the motion, and Brown pleaded guilty. In a published decision, the court of appeals reversed the circuit court. See 2013 WI App 17. In a majority opinion authored by Justice Bradley, the supreme court affirmed the court of appeals.
The state argued that the officers’ observation of an unlit light bulb in Brown’s tail lamp justified a stop because the law requires all light bulbs in a tail lamp to be lit. It asserted that this requirement is found in Wis. Stat. section 347.13(1), which prohibits the operation of a vehicle at night unless its tail lamps are in “good working order.” Because the officers observed a violation of the law, the state contended that they had probable cause to stop the vehicle. Even if the unlit bulb were not part of the tail lamp, the state argued that it still created reasonable suspicion to stop the vehicle and the results of the search should not be suppressed (see ¶ 21).
The supreme court did not interpret Wis. Stat. section 347.13(1) as requiring every single light bulb in a tail lamp to be lit. “The plain language of the statute requires that a tail lamp emit a red light visible from 500 feet behind the vehicle during hours of darkness. This interpretation is further supported by related statutes requiring that the lamps be in proper working condition. Wis. Stat. § 347.06(3)” (¶ 2). Contrary to the state’s assertions, the supreme court believed that the standard it was adopting is not unworkable and does not fail to give guidance to the police. “This interpretation requires officers to determine if they can see a red light emitted from the back of a vehicle from a distance of 500 feet” (¶ 37).
Because the only basis for the stop of the vehicle was the unlit bulb, the court concluded that there was neither probable cause nor reasonable suspicion to stop the vehicle. Even though the officers may have believed that the law requires all bulbs in a tail lamp to be lit, neither probable cause nor reasonable suspicion can be based on an officer’s mistake of law (see ¶ 40). Because the stop of the vehicle was unlawful, so too was its search, and the results of that search must be suppressed.
Justice Prosser filed a dissenting opinion. Justice Roggensack also filed a dissent that was joined by Justice Ziegler.
Real Property
Adverse Possession – “Claim of Title” Requirement – Subjective Intent of Claimant
Wilcox v. Estate of Hines, 2014 WI 60 (filed 11 July 2014)
HOLDING: A party’s subjective intent to claim title to property is relevant to rebut the presumption of hostility that arises when all other elements of adverse possession are established.
SUMMARY: Wisconsin’s adverse possession statute (Wis. Stat. section 893.25) provides that property is adversely possessed only if the possessor is in “actual continued occupation under claim of title, exclusive of any other right” and the property is “protected by a substantial enclosure” or “usually cultivated and improved” (¶ 19). The claim-of-title requirement in the statute corresponds to what was the “hostility” requirement in the common law of adverse possession (see ¶ 22). When all other elements of adverse possession (open, notorious, continuous and exclusive possession) are established, the law presumes a hostile intent (see id.).
In this case, the Wilcoxes brought an action for adverse possession for the purpose of gaining title to a strip of land separating their property from Lake Delton. The question presented was whether the Wilcoxes could establish that they adversely possessed the disputed property when their predecessors in interest, the Somas, expressly disclaimed ownership of it and sought permission to use the property from an entity that the Somas mistakenly believed was its true owner. (The Wilcoxes purchased the property from the Somas in 2002 and had to “tack” their period of possession onto that of the Somas to reach the 20-year period of possession required by the adverse possession statute (see ¶ 11 n.11).)
The Wilcoxes argued that it is irrelevant whether the Somas subjectively intended to claim ownership of the property, so long as their use of the property was sufficient to put the true owner on notice of occupation. In contrast, the titleholdersmaintained that a party’s subjective intentto claim ownership is relevant to whether claim of titlehas been established under the statute. The titleholders asserted that the fact that the Somas expressly disclaimed ownership of the lakefront strip and requested permission to use it from an entity they mistakenly believed was its true owner demonstrates they did not intend to claim title to the property (see ¶ 2). The circuit court dismissed the adverse possession claim. In a published decision, the court of appeals reversed the circuit court. See 2013 WI App 68.
In a majority decision authored by Justice Gableman, the supreme court reversed the court of appeals. The court held that “a party’s subjective intent to claim title to property is relevant to rebut the presumption of hostility that arises when all other elements of adverse possession are established. Wisconsin Stat. § 893.25 requires that property be possessed ‘under claim of title’ to establish adverse possession. The plain meaning of the ‘claim of title’ requirement is that a party must intend to claim possession of the disputed property. Therefore, in order to gain title by adverse possession, the adverse claimant and all predecessors in interest must have the actual intent to possess the property under a claim of ownership.
“The Somas’ express declarations of non-ownership and requests for permission to use the lakefront strip were sufficient to support the circuit court’s conclusion that they lacked the requisite hostile intent to adversely possess the property. Because the circuit court properly considered the Somas’ subjective intent and concluded that the Wilcoxes failed to establish adverse possession for the requisite statutory period, we affirm the judgment of the circuit court…” (¶ 35).
Chief Justice Abrahamson filed a dissenting opinion.
Commercial Leases – Notice of Lease Extension – Subtenants
Anthony Gagliano & Co. v. Openfirst LLC, 2014 WI 65 (filed 15 July 2014)
HOLDINGS: The plaintiff landlord provided sufficient notice to the tenant with respect to the former’s intention to extend a commercial lease, and defendant Quad/Graphics was not liable to the landlord for rent because Quad/Graphics was a subtenant, not an assignee of the lease.
SUMMARY: The circuit court dismissed the claims of the plaintiff, Anthony Gagliano & Co. (Gagliano), against defendants New Electronic Printing Systems LLC, Openfirst LLC, Robert Kraft, and Quad/Graphics Inc. Gagliano’s claims concerned rent allegedly owed under several commercial leases. The leases gave landlord Gagliano the right to extend the leases on timely notice. In a published decision, the court of appeals reversed the circuit court. See 2013 WI App 19. In a majority decision authored by Justice Roggensack, the supreme court affirmed in part and reversed in part.
This case presented two issues: 1) whether Gagliano gave sufficient notice to extend the leases to the time when the alleged breach occurred; and 2) whether Quad/Graphics was a subtenant of the lessee or an assignee of the leases.
As to the first issue, the supreme court concluded that Gagliano’s notice was valid. “Gagliano provided notice: (1) to the entity designated as the tenant on the original lease; (2) to the entity who was the current tenant at the time of the notice; and (3) to the entity a subsequent amendment of the lease designated as the tenant. The notice is also valid because the current tenant at the time Gagliano sent the notice had actual notice that Gagliano was exercising its alleged right to extend the leases. Accordingly, we affirm the portion of the decision of the court of appeals that reversed the circuit court’s directed verdict, which had concluded that Gagliano’s notice was not valid. We remand to the circuit court for fact-finding necessary to decide the merits of [defendant] Kraft’s remaining arguments relating to the lawfulness of the extension provision in the leases” (¶ 2).
As for the second issue, the court held that Quad/Graphics is not liable to Gagliano for rent because Quad/Graphics was a subtenant of a lessee, not an assignee of the lease. “[W]hen an occupant is a subtenant, the subtenant is liable only to the tenant for the rent agreed upon between those parties” (¶ 51). “Undisputed evidence shows that New Electronic Printing Systems, the assignee of the original tenants, did not transfer its entire remaining leasehold estate to Quad/Graphics. Because Gagliano and Quad/Graphics did not share privity of estate, [Quad/Graphics] is not an assignee. Therefore, we do not hold Quad/Graphics liable for New Electronic Printing Systems’ alleged breach of contract to which Quad/Graphics was not a party. Accordingly, we reverse the portion of the decision of the court of appeals that reversed the order of the circuit court granting summary judgment in favor of Quad/Graphics and remand to the circuit court for dismissal of all claims against Quad/Graphics” (¶ 3).
Justice Bradley filed an opinion concurring in part and dissenting in part. Chief Justice Abrahamson filed a dissent.
Sexually Violent Persons Law
Chapter 980 Petitions – Invalidated Convictions
State v. Spaeth, 2014 WI 71 (filed 16 July 2014)
HOLDING: The sufficiency of a Wis. Stat. chapter 980 petition is assessed at the time of filing; thus, the later invalidation of a predicate conviction does not necessarily undermine a chapter 980 commitment that was properly begun.
SUMMARY: Spaeth has been convicted of multiple sexual offenses with children since the early 1990s. After his latest offenses, in 2010 the state filed a chapter 980 petition to have him committed as a sexually violent person. The petition was based on convictions in 2009. In 2012, however, the 2009 convictions were overturned and the charges dismissed because Spaeth’s Fifth Amendment rights had been violated. The circuit court refused to amend the chapter 980 petition to reflect prior convictions because they did not comport with Wis. Stat. section 980.02(1m). The state appealed, and the court of appeals certified the case to the supreme court, which granted certification.
In a majority opinion authored by Justice Gableman, the supreme court held that the sufficiency of chapter 980 petitions is based on the time of filing and that a petition is not invalidated by the later reversal of a predicate conviction (see ¶ 15). Although the overturned conviction “unquestionably impacts the strength of the State’s case for his commitment,” it does not negate the validity of the chapter 980 petition (see ¶ 34). A contrary conclusion would run “contrary to the primary purpose of Chapter 980” (¶ 33).
Justice Prosser dissented, joined by Chief Justice Abrahamson and Justice Bradley, on grounds “that a petition must remain viable in its original form or be amended to make it viable” (¶ 37). Chapter 980 “centers around the sexually violent offense for which a person is confined at the time a Chapter 980 petition is filed” (¶ 61). The dissent sets forth the state’s delimited authority under ch. 980 (see ¶ 76).
