Wisconsin Lawyer
Vol. 80, No. 5, May 2007

Appellate Procedure Civil Procedure Criminal Procedure

Family Law Insurance Taxation

Appellate Procedure

Tyler v. The RiverBank, 2007 WI 33 (filed 21 March 2007)

Tyler sued RiverBank on a variety of claims, some of which were dismissed at the summary judgment stage. A jury found in favor of RiverBank on the remaining claims. Following a hearing on postverdict motions, the trial court entered an order denying the motions on May 24, 2005. On June 16, 2005, the court entered a document entitled "judgment" that explicitly "dismissed with prejudice" Tyler's claims. Tyler filed a notice of appeal 88 days after the June 16 "judgment" and 110 days after the May 24 order. Because Wis. Stat. section 808.04(1) allows 90 days to file a notice of appeal, the central issue was on which date the 90-day period commenced.

The supreme court, in an opinion authored by Justice Wilcox, reversed the court of appeals' determination that the appeal was untimely. The court said that two types of scenarios caused confusion. "Scenario one is when a document, other than a judgment or order, arguably disposes of the entire matter in litigation as to one or more parties. Scenario two is when a court enters two documents and each arguably disposes of the entire matter in litigation as to one or more parties" (¶ 16). This case was of the second type. The taproot of the confusion in each scenario is the meaning of the term "dispose." "A court disposes of the entire matter in litigation in one of two ways: (1) by explicitly dismissing the entire matter in litigation as to one or more parties or (2) by explicitly adjudging the entire matter in litigation as to one or more parties. To define `dispose' in the negative, a court merely addressing, or deciding, substantive issues is not enough to qualify as disposing of them" (¶ 17).

The supreme court conceded its "lack of precision" in prior cases (¶ 20), which it remedied by prescribing the following rule. "From September 1, 2007 forward, the final document will have `a statement on the face of [it] that it is final for the purpose of appeal. Absent such a statement, appellate courts should liberally construe ambiguities to preserve the right of appeal' [quoting Wambolt v. West Bend Mutual Ins. Co., which is digested below]. This rule, when applied with § 808.03(1), provides a clear means of determining when the time to file a notice of appeal commences. For clarity, note that a document constitutes the final document for purposes of appeal when it satisfies each of the following conditions: (1) it has been entered by the circuit court, (2) it disposes of the entire matter in litigation as to one or more parties, and (3) it states on the face of the document that it is the final document for purposes of appeal. In the (hopefully) rare cases where a document would otherwise constitute the final document, but for not including a finality statement, courts will construe the document liberally in favor of preserving the right to appeal" (¶¶ 25-26).

Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35 (filed 21 March 2007)

This case, along with Tyler v. The RiverBank (digested above), concerns the timeliness of appeals and announces an important new procedure to prevent confusion about when the 90-day period to appeal begins to run. Writing for the court, Justice Bradley declared that "[i]n order to further limit the confusion regarding what documents are final orders or judgments for the purpose of appeal, we will, commencing September 1, 2007, require a statement on the face of a document that it is final for the purpose of appeal. Absent such a statement, appellate courts should liberally construe ambiguities to preserve the right of appeal" (¶ 4).

The underlying case involved an insurance coverage dispute, which the circuit court addressed in a "memorandum decision" dated April 25, 2005, on motions for summary judgment. On June 6, 2005, the circuit court entered an order that explicitly dismissed the entire matter against one of the parties. Wambolt's notice of appeal was filed within 90 days of the June 6 order but outside the statutory period if the time began running on April 25.

The supreme court reversed the court of appeals' determination that Wambolt's appeal was untimely. "This case presents the issue of whether a memorandum decision may constitute a final order or judgment from which appeal may follow under Wis. Stat. § 808.03(1)" (¶ 13). The court said that the relatively few cases on whether memorandum decisions could be appealed as a matter of right were inconsistent, appearing "to offer something to all sides" (¶ 24).

The court then held that "in order to `dispose' of the matter under § 808.03(1), a memorandum decision must contain an explicit statement either dismissing the entire matter in litigation or adjudging the entire matter in litigation as to one or more parties. This conclusion is consistent with our decision in [Harder v. Pfitzinger, 2004 WI 102], which was based upon an order explicitly dismissing the entire matter in litigation as to several parties. Further, Wisconsin jurisprudence has consistently focused on whether a document `disposes' of a matter - rather than whether it `decides' a matter - in determining whether that document is a final order or final judgment within the meaning of § 808.03(1). Finally, this is the view that comports with the sources that discuss Wisconsin trial and appellate practice" (¶ 39).

The court also determined that the new rules should be applied prospectively, commencing for "final orders and final judgments entered after September 1, 2007" (¶ 49). Absent the "clear statement" mandated by the new rules, "the appropriate course is to liberally construe documents in favor of timely appeals. That is, absent explicit language that the document is intended to be the final order or final judgment for purposes of appeal, appellate courts should liberally construe ambiguities to preserve the right of appeal" (¶ 46).

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Civil Procedure

Estate of Rille v. Physicians Ins. Co., 2007 WI 36 (filed 23 March 2007).

Rille became ill after taking a medication for which his physician inadvertently miswrote the prescription. The plaintiffs sued both the doctor, Galbraith, and the pharmacy that filled the prescription, Osco. Galbraith did not file a separate contribution claim against Osco but did reference the claim in her answer. Osco later moved for summary judgment because the plaintiffs had not named experts who would testify that Osco had been causally negligent. Neither the plaintiffs nor Galbraith opposed the summary judgment motion, although Galbraith indicated her intention to later pursue contribution. The order dismissing Rille's claim against Osco cryptically indicated that the order did not "affect the rights of other parties." Galbraith later filed a contribution claim against Osco, and the circuit court dismissed the claim on the ground of issue preclusion. Galbraith appealed the order dismissing her third-party complaint, and the court of appeals certified the case to the supreme court, which affirmed in an opinion authored by Chief Justice Abrahamson.

Prior cases set forth a two-part analysis: "(1) whether issue preclusion can, as a matter of law, be applied, and if so, (2) whether the application of issue preclusion would be fundamentally fair" (¶ 36). Although "[o]rdinarily issue preclusion arises in a subsequent lawsuit," case law establishes that it also "applies when one party seeks to bar another from relitigating a prior adjudication in the same lawsuit" (¶ 41). The prime dispute centered on whether "the issue of Osco Drug's negligence was actually litigated and determined in the summary judgment proceeding by a valid judgment and whether the determination of the issue was essential to the prior judgment" (id.). The circuit court had made it clear that it granted Osco's summary judgment motion on the merits (see ¶ 47). Galbraith cited no authority supporting her argument that she could somehow "reserve" the Osco contribution claim (see ¶ 50). Having decided that Osco was entitled to issue preclusion as a matter of law, the court also ruled that fundamental fairness supported this determination based on the standard five-factor analysis (see ¶ 61). (This is a fact-intensive analysis and will not be summarized.)

The court closed with this admonition: "To preserve her contribution claim against Osco Drug successfully against a challenge on the ground of issue preclusion, Dr. Galbraith should have appeared and objected on the merits to Osco Drug's motion for summary judgment, thereby ensuring that there would be no possibility of inconsistent fact-finding on any issue central to Rille's claim and her own claim. Filing a brief and arguing that her claim for contribution should be preserved for a later date was not adequate, without any justification for her position, to avoid issue preclusion" (¶ 104).

Justice Prosser dissented on the grounds that Galbraith had been treated unfairly and that the majority's approach portends "serious implications for defendants with potential claims in future multiparty lawsuits" (¶ 134).

Pool v. City of Sheboygan, 2007 WI 38 (filed 27 March 2007)

Pool filed a notice of claim against the city asserting that its removal of his fence amounted to an inverse condemnation without just compensation. The city denied the claim in a letter sent by certified mail that also stated that Pool's claim was subject to a six-month statute of limitation. Because the city had not, however, indicated "restricted delivery" on the certified mail receipt, Pool's adult daughter signed for the letter as his "agent." Pool later filed a lawsuit against the city after the expiration of the six-month statute of limitation provided by Wis. Stat. section 893.80(1g). The circuit court dismissed Pool's claim on the ground that he had "actual notice" of the claim's disallowance, although the court said that it was "troubling" that the city had not indicated restricted delivery (see ¶ 7). The court of appeals reversed, stating that the statute plainly required that the notice be "served on the claimant" (see ¶ 8).

In an opinion authored by Justice Roggensack, the supreme court affirmed the court of appeals. "We agree that the unambiguous language of Wis. Stat. § 893.80(1g) requires strict compliance with its terms. In so concluding, we note that strict compliance with § 893.80(1g) provides the benefit of a shortened six-month statute of limitations period to the governmental body disallowing the claim. We consistently have held that procedural requirements in statutes that provide benefits to one of the parties `must be strictly complied with in every material particular, or the attempt to obtain the benefits of them will fail'" (¶ 16). Quite simply, Pool had not signed the receipt.

Although section 893.80(1g) provides examples of proof of service, the court decided to "leave for another day … whether the examples in § 893.80(1g) are or are not an exclusive list of how service may be proved and whether the examples listed are `conclusive' proof of service" (¶ 19). The court rejected the city's arguments grounded in "actual notice" and related statutes. In conclusion, the court said that "[s]ection 893.80(1g) requires that service be made by either registered or certified mail. We also conclude that the return of a receipt for registered or certified mail signed by the claimant and the return of registered mail addressed to the claimant are examples of proof of service acceptable under § 893.80(1g)" (¶ 25).

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Criminal Procedure

State v. Johnson, 2007 WI 32 (filed 21 March 2007)

Two police officers stopped a vehicle in the early evening on a street illuminated by street lights after the vehicle's driver failed to signal for a turn. The officers also had reason to believe that the registration for the vehicle was suspended (because of an emissions law violation). Two people were in the vehicle. One officer testified that he saw the driver of the car "lean forward, which appeared to be reaching underneath his front seat." Though the officer could not see the driver's hands, he stated that the driver's head was "pretty close" to disappearing from view. The other officer testified that he saw a portion of the driver's head and shoulders disappear from view. Both officers testified that, in light of their experience and training, they believed that the driver's movement was consistent with an attempt to conceal contraband or weapons. Neither officer had had any prior contact with the driver.

The driver complied with the officers' request to exit the vehicle. He provided them with paperwork indicating that the emissions problem had been corrected. One of the officers advised the driver that, because of his movements, the officers were going to search the vehicle, to which the driver responded, "I don't have a problem with that." Both officers indicated that they intended to search the vehicle with or without the driver's assent. During the vehicle search one of the officers found a baggie of marijuana underneath the driver's seat.

The driver was then arrested and, in a search incident to arrest, the officers recovered a baggie containing several grams of crack cocaine from his pocket. Charged with controlled substances violations, the defendant driver moved to suppress the evidence obtained during the search of his person and the vehicle. The circuit court denied the motion, and the defendant pleaded guilty to one count of possession of cocaine with intent to deliver. The court of appeals reversed the conviction; it focused its inquiry on whether the officers had reasonable suspicion to justify a search of the defendant's vehicle and concluded that they did not. See State v. Johnson, 2006 WI App 15. In a majority decision authored by Justice Butler, the supreme court affirmed the court of appeals.

As an initial matter the court considered whether the search of the vehicle was conducted with the defendant's consent. Although the state conceded on appeal that the defendant did not freely consent to the search, the court nonetheless examined the issue for itself before concluding that the circuit court had erred in finding that the defendant had consented to the search. The supreme court said that when the state seeks to rely on consent to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given. Acquiescence to an unlawful assertion of police authority is not equivalent to consent (see ¶ 16). The court concluded that neither officer asked for the defendant's permission to search the car and one of them actually advised the defendant that the officers were going to conduct the search. The defendant's response to that command (described above) "must consequently be construed as acquiescence" (¶ 19).

Moving to the crucial issue of whether the defendant's allegedly furtive movements justified the vehicle search, the court began with the proposition that, during an investigatory stop, an officer is authorized to conduct a search of the outer clothing of a person to determine whether the person is armed if the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968). Under proper circumstances an officer also may conduct a protective search of the passenger compartment of a vehicle during a traffic stop when the officer reasonably suspects that the person "is dangerous and … may gain immediate control of weapons" placed or hidden in the passenger compartment. Michigan v. Long, 463 U.S. 1032, 1049 (1983).

Whether the standards of Terry and Long justify a particular frisk is determined by the circumstances of each case. The supreme court surveyed its holdings in several stop-and-frisk cases before concluding that the officers in this case did not have the reasonable suspicion necessary to support a protective frisk. The state contended that the defendant's movement in the interior of the car was a sufficiently compelling factor to justify a protective search of the car. The court agreed with the state that the presence of a single factor, if sufficiently compelling, may give rise to reasonable suspicion justifying a protective search. The cumulative effect of several factors in one case might not add up to reasonable suspicion, whereas a single, highly persuasive factor in another might provide a sufficient basis for a search (see ¶ 35). However, under the totality of the circumstances present in this case, the court concluded that the defendant's "head and shoulders" movement did not give the officer reasonable suspicion to conduct a protective search.

The court found further support for its conclusion in the following facts: 1) the defendant was only suspected of committing vehicular offenses that were in no way linked to criminal activity or weapons possession; 2) the officers had not had prior contact with the defendant that would suggest that he was a dangerous individual; 3) the stop occurred in the early evening in a well-lit area; and 4) the defendant cooperated with the officers in exiting the vehicle and producing documentation showing that his vehicle had recently passed an emissions test.

Said the court, "[w]ere we to conclude that the behavior observed by the officers here was sufficient to justify a protective search of [the defendant's] person and his car, law enforcement would be authorized to frisk any driver and search his or her car upon a valid traffic stop whenever the driver reaches to get his or her registration out of the glove compartment; leans over to get his wallet out of his back pocket to retrieve his driver's license; reaches for her purse to find her driver's license; picks up a fast food wrapper from the floor; puts down a soda; turns off the radio; or makes any of a number of other innocuous movements persons make in their vehicles every day. In each of these examples, the officer positioned behind the vehicle might see the driver's head and shoulders move, or even momentarily disappear from view. Without more to demonstrate that, under the totality of circumstances, an officer possesses specific, articulable facts supporting a reasonable suspicion that a person is dangerous and may have immediate access to a weapon, such an observation does not justify a significant intrusion upon a person's liberty" (¶ 43).

Justice Roggensack filed a dissenting opinion that was joined by Justice Wilcox.

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Family Law

Nicole gave birth to a daughter, B, in October 2003. In 2005 the county began termination of parental rights (TPR) proceedings based on B's continuing need for protection as well as the termination of Nicole's rights to another child within the previous three years. The county moved for partial summary judgment on the second ground, relying on an order from another circuit court that involuntarily terminated Nicole's parental rights to her son, R, because of her failure to appear at a hearing. Although the prior order stated Nicole was in default, it did not specify the grounds for the involuntary TPR (regarding R). Nonetheless, the court in this action granted the motion for partial summary judgment terminating Nicole's rights to B. The court of appeals affirmed.

The supreme court, in a decision authored by Justice Roggensack, affirmed. Prior cases held "that summary judgment may be employed in the grounds phase of a termination of parental rights proceeding when there is no genuine factual dispute that would preclude finding one or more of the statutory grounds by clear and convincing evidence" (¶ 14). "In this case, we address whether partial summary judgment was properly granted under Wis. Stat. § 48.415(10) when the order that terminated Nicole's parental rights to [R] did not state the explicit § 48.415 ground upon which the circuit court relied and the prior involuntary termination was based on her default for failing to comply with a court order to personally appear at the fact-finding hearing of the grounds phase of the termination of parental rights proceeding" (¶ 15).

The court held that "the statute is not ambiguous and that its plain language requires that: (1) the child who is the subject of the petition has been adjudged to be in need of protection or services under Wis. Stat. § 48.13(2), (3) or (10); and (2) within the three years prior to that adjudication a court has terminated the parent's rights to another child in an involuntary termination proceeding. We come to this second conclusion because the words of § 48.415(10)(b), `on one or more of the grounds specified in this section,' when read in the context of the whole statute, plainly refer to the 12 grounds listed for an involuntary termination of rights under § 48.415. This is significant because it is only an involuntary termination of rights that is sufficient to satisfy § 48.415(10). Stated otherwise, if Nicole had voluntarily given up her rights to [R], the order terminating her parental rights to him would be insufficient to satisfy § 48.415(10) because that order would not have been based `on one or more of the grounds specified in this section,' i.e., in § 48.415" (¶ 18).

For this reason the court was not persuaded that the court's failure in R's case to check a prescribed box on a form precluded summary judgment here (see ¶ 21). Wisconsin recognizes a "presumption of validity of judgments," based on which the supreme court assumed that the other court had found by clear and convincing evidence that at least one ground listed in Wis. Stat. section 48.415 had been established (see ¶ 23).

The supreme court also rejected Nicole's related argument that the circuit court in this action should have looked for "more evidence" regarding the prior involuntary TPR order. For the supreme court to so rule would have been "tantamount to permitting a collateral attack on the prior order" (¶ 27).

Chief Justice Abrahamson, joined by Justices Bradley and Butler, dissented, arguing that the majority had effectively rewritten Wis. Stat. section 48.415(10)(b). "If the legislature had concluded that proof of a prior involuntary termination of parental rights was all that was needed it could have simply so stated in Wis. Stat. § 48.415(10). It did not" (¶ 42).

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Insurance

Aslakson v. Gallagher Bassett Servs. Inc., 2007 WI 39 (filed 29 March 2007)

The plaintiff, a carpenter, was seriously injured in July 1998 in a construction-site accident. Because his employer carried no worker's compensation coverage, he filed a claim with the Uninsured Employers Fund in early 2000. The fund is administered by the Department of Workforce Development (DWD), which in turn retained Gallagher Services to process, investigate, and pay claims. Gallagher Services denied the claim despite an independent medical examination that confirmed the plaintiff's disability. Eventually an administrative law judge, the Labor and Industry Review Commission, and a circuit court all ordered Gallagher Services to pay the claim. The plaintiff then brought this lawsuit against the fund and Gallagher, asserting that the denials and reviews were pursued in bad faith. The circuit court denied Gallagher Services' motion to dismiss, but the court of appeals, on an interlocutory appeal, reversed.

The supreme court, in an opinion written by Chief Justice Abrahamson, reversed the court of appeals. "This case requires the court to determine whether the Worker's Compensation Act provides a remedy against Gallagher Services, the administrator of the Uninsured Employers Fund and agent of the Department, for its alleged bad faith conduct and whether the Act bars the plaintiff's tort claim against Gallagher Services for bad faith" (¶ 26). The court held that Gallagher Services was not subject to the Wis. Stat. section 102.18(1)(a) penalties or interest provisions, which the legislature imposed on insured employers and their insurers who act in bad faith.

"The Worker's Compensation Act, however, does not address Gallagher Services' liability for its acts of bad faith and therefore does not bar the plaintiff's bad faith tort claim against Gallagher Services" (¶ 32). "Not a single sentence in the Worker's Compensation Act refers to the bad faith conduct of the Department or its agent. The sole bad faith statutory remedy in the Worker's Compensation Act is set forth in Wis. Stat. § 102.18(1)(bp), which by its very text applies to the bad faith of an employer or an employer's insurer. The text of Wis. Stat. § 102.18(1)(bp) explicitly deals solely with the malice and bad faith of an `employer or insurance carrier'" (¶ 65).

Moreover, "[a] review of the case law regarding bad faith claims against insurance companies and the `exclusive remedy' provision of the Worker's Compensation Act makes clear that the case law has recognized the tort of bad faith against a worker's compensation insurance carrier and that the Act's exclusivity provision does not bar the tort of bad faith" (¶ 69). The court said that the cases and the Act pointed to the "following unavoidable conclusions: The Act does not explicitly bar the plaintiff's bad faith claim against Gallagher Services for its alleged bad faith in processing the claim. The injury the plaintiff suffered resulting from Gallagher Services' alleged bad faith conduct occurred after the injury covered by the Act. Accordingly, the plaintiff's injury allegedly caused by Gallagher Services was not an injury covered under the Act, and the plaintiff may seek relief in the courts for the tort of bad faith against Gallagher Services under the principles enunciated in [Coleman v. American Universal Ins. Co. (1979)]. Although Coleman involved a worker's compensation insurer, the principles enunciated therein apply to Gallagher Services, absent explicit statutory language barring the assertion of the tort of bad faith" (¶ 80).

Justice Wilcox dissented. He said that absent a legislative remedy, injured employees alleging bad faith against DWD or its agents (here Gallagher Services) for uninsured claims are "left without a remedy" (¶ 110).

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Taxation

Wisconsin Dep't of Revenue v. River City Refuse Removal Inc., 2007 WI 27 (filed 8 March 2007)

River City Refuse Removal Inc. was a stock corporation organized under Wisconsin law. It collected refuse and recyclables in Wisconsin from residences and businesses. It was a wholly-owned subsidiary of Browning-Ferris Industries (BFI), a publicly traded corporation that had several other wholly-owned subsidiaries in several states.

BFI would assess the equipment needs of its subsidiaries and direct the transfer of assets among them. "For accounting purposes, three sets of books would be involved: the sending subsidiary's, the receiving subsidiary's, and BFI's. The subsidiaries each had an intercompany payables account and an intercompany receivables account. The receiving subsidiary would add the net book value of assets to its intercompany payables account. Net book value would be arrived at by subtracting the accumulated depreciation previously taken by the sending subsidiary from the original purchase price. The sending subsidiary would subtract the same value from its intercompany receivables account. Subsidiaries did not exchange money for the intercompany transfers. BFI took responsibility for reconciling each subsidiary's receivables and payables in BFI's books, with the intercompany transfers netting zero on BFI's consolidated financial statement" (¶ 8).

River City took part in the intercompany transfers. When it received fixed assets (e.g., trucks, tractors, and tractor-trailers) from other BFI subsidiaries, it would receive all rights to, and ownership of, the transferred assets. River City would retitle the assets in its name and recognize the transfers in its financial records. It paid no tax at the time of retitling.

The critical issue before the supreme court was whether the fixed assets River City received between 1993 and 1997 through intercompany transfers with wholly-owned subsidiaries of its parent company were subject to the use tax. The Tax Appeals Commission concluded that they were not subject to the use tax, the circuit court reversed the commission, and the court of appeals reversed the circuit court. See 2006 WI App 34. In a majority decision authored by Justice Wilcox, the supreme court affirmed the court of appeals and thus held that the intercompany transfers were not subject to the use tax.

The relevant part of Wis. Stat. section 77.53(1) provides that use tax is "[a]n excise tax … levied and imposed … on the storage, use or other consumption in this state of tangible personal property purchased from any retailer, at the rate of 5% of the sales price of that property." In this case the court concluded that the intercompany transfers were not subject to the use tax "because of the lack of the requisite `retailer' or `purchase' necessary for the transfers to fall within the scope of Wis. Stat. § 77.53(1) (1993-94)" (¶ 2). The BFI subsidiaries were not "retailers" within the meaning of any of the definitions of "retailer" as codified in Wis. Stat. § 77.51(13)(a), (am), and (b) (see ¶¶ 39-48). Further, the requisite consideration did not exist for the intercompany transfers to be "purchases" under section 77.51(12)(a). "River City received fixed assets from BFI subsidiaries and gave nothing in return. There is no evidence of a payment. There is no evidence that River City made any promises to the BFI subsidiaries. The BFI subsidiaries acted and got nothing in return" (¶ 52).

The court also reviewed a negligence penalty that the Department of Revenue had assessed against River City under section 77.60(3) in connection with the nonpayment of the use tax. It concluded that River City satisfied its burden to show that its nonpayment of taxes was due to good cause and not due to neglect, and that it need not pay a negligence penalty (see ¶¶ 60-64).

Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.

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