Vol. 76, No. 2, February
Court of Appeals Digest
This column summarizes selected published
opinions of the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and
Prof. Thomas J. Hammer invite comments and questions about the digests.
They can be reached at the Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Default Judgment - Service - Damages
Carmain v. Affiliated
Capital Corp., 2002 WI App 271 (filed 2 Oct. 2002) (ordered
published 20 Nov. 2002)
The plaintiff obtained a default judgment against two defendants,
including a limited liability partnership (LLP). The court of appeals,
in an opinion written by Judge Snyder, affirmed in part and reversed in
part. This appeal raised several issues regarding proper service on LLPs
and proof of damages in default judgment cases.
First, although the court could not "agree" that Wis. Stat. section
179.04 "provides the exclusive means for service upon a limited
partnership, a limited partnership may be served by serving the
partnership's registered agent under § 179.04(1)(b) or by
substituted service upon the Department of Financial Institutions
pursuant to § 179.04(2)." Neither of these procedures was followed
in this case. Instead, the plaintiff served the "maintenance man," a
process that failed to "comply with any of the requirements of Wis.
Stat. §§ 801.11 or 179.04" (¶¶16-17). In light of
the defective service, the court lacked personal jurisdiction and should
not have granted a default judgment against this LLP party.
The court upheld the entry of default judgment against another
defendant. A "letter" to the court written by a non-lawyer on behalf of
this corporate defendant did not constitute a "legally recognizable
answer." Nor had the defendant demonstrated "excusable neglect" for
failing to file an appropriate answer in a timely fashion.
Finally, the circuit court erred in prohibiting this defendant from
presenting evidence regarding damages. Case law establishes "that when
determining damages for an unliquidated claim, a circuit court requires
additional proof beyond the complaint" (¶30).
Defective Pleadings - Pleading Signed by Suspended Attorney -
Failure to Cure Defect
Town of Dunkirk v. City of
Stoughton, 2002 WI App 280 (filed 31 Oct. 2002) (ordered
published 20 Nov. 2002)
The town of Dunkirk filed a complaint challenging an annexation
petition originated by the city of Stoughton. The initial summons and
complaint were signed by the town's attorney, who had been suspended
from the practice of law in Wisconsin for noncompliance with mandatory
continuing legal education requirements. Acting through new counsel, the
town subsequently filed an amended complaint that was signed by new
counsel. However, the town did not file or serve on the defendants an
amended or corrected summons signed by new counsel.
The defendants moved to dismiss the amended complaint, and the
circuit court granted the motion. It concluded that the suspended
attorney's signature on the original summons and complaint was a
fundamental defect, and therefore the court had no personal jurisdiction
over the defendants.
In a decision authored by Judge Vergeront, the court of appeals
affirmed. It held that there was a defect in the initial summons and
initial complaint because both were signed by an attorney who was
suspended from the practice of law at the time of signing. The court
further concluded that the defect was fundamental rather than technical.
See Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639
Further, assuming without deciding that the defect could be cured
under Wis. Stat. section 802.05(1)(a), the court held that it was not
cured, because the town filed only an amended complaint with new
counsel's signature but never filed an amended or corrected summons.
Therefore, the circuit court had no personal jurisdiction over the
defendants, and it properly dismissed the action.
Parties - Minors - Guardians
McPherson, 2002 WI App 298 (filed 13 Nov. 2002) (ordered
published 18 Dec. 2002)
Erik Jensen, a minor, was born with crippling injuries. In 1997 his
parents began a malpractice action against the doctor who had allegedly
injured Erik before his birth. The action terminated in a mistrial. In
2001, successor counsel began a separate medical malpractice action on
behalf of Erik against the same defendants, who moved to dismiss the
action on the ground that it duplicated the 1997 complaint. The circuit
court denied the motion to dismiss and, instead, granted the plaintiffs'
motion to consolidate the 1997 and 2001 actions. The court also
established a new scheduling order and reopened discovery.
The defendants obtained leave to appeal and raised four issues: 1)
was Erik a party-plaintiff in the 1997 action; 2) if Erik was a party,
must he be represented by a guardian and was he in fact represented by a
guardian; 3) did the circuit court err in reopening the scheduling
order; and 4) should the order be reversed for public policy reasons.
The court of appeals, in an opinion written by Judge Anderson, affirmed
the circuit court.
The court of appeals noted that the law clearly establishes that Erik
and his parents each had a separate cause of action. The 1997 complaint
failed, however, to name Erik as a party-plaintiff. Neither the caption
nor the body of the complaint identified Erik as a plaintiff. For
example, one paragraph described his parents as "the plaintiffs" and
simply named Erik as their "minor son." Other references to Erik
rendered the complaint, as a whole, "perplexing" (¶15).
As to the second issue, the court held that Wis. Stat. section
803.01(3)(a) "requires that a minor who is a party must appear by a
guardian of the minor's property or guardian ad litem" (¶16). Erik
had neither during the 1997 litigation. Moreover, Erik's parents were
not "guardians" within the meaning of the statute because they had not
been appointed by the court to that role (¶21).
Addressing the last two issues, the court found no abuse of
discretion in the trial court's decision to reopen the scheduling order,
nor was it "moved" by the defendants' public policy argument.
Attorney Misconduct - Frivolous Appeals - Deed Restrictions
Weiland v. Paulin,
2002 WI App 311 (filed 13 Nov. 2002) (ordered published 18 Dec.
The plaintiffs sued the Paulins for violating subdivision deed
restrictions by building a manufactured structure on their land. The
circuit court granted summary judgment in favor of the plaintiffs.
In an opinion authored by Judge Nettesheim, the court of appeals
affirmed. Based on the record, the court brushed aside the Paulins'
contentions that they were not aware of the restrictions and that the
structure nonetheless complied with the restrictions. The court also
found that the deed restrictions were reasonable. "The history of the
subdivision demonstrates that the restrictions have been applied
uniformly and have been relied upon by other homeowners in the
On its own motion, the court of appeals declared that the Paulins'
appeal was frivolous under Wis. Stat. section 809.25(3)2. The finding of
frivolousness was "based on a number of transgressions, all of which we
lay at the feet of the Paulins' counsel" (¶22). "First, counsel
failed to fulfill his professional duty to provide this court with all
of the facts relevant to the appeal with appropriate references to the
record" (¶22). "Second, counsel's presentation of the facts
regarding the Paulins' claimed ignorance of the deed restriction borders
on outright deceit because the record demonstrates that the Paulins had
previously complied with the restrictions" (¶23).
"Third, and most disturbingly, counsel has misrepresented the trial
court's ruling" (¶24). The court explained that it learned of the
misrepresentations only after reading the respondents' brief and combing
the record, particularly the trial court's decision. "A forthright and
professional lawyer will reveal and address on appeal the full extent of
the relevant facts and the trial court's reasoning" (¶25). "Fourth,
we are troubled by counsel's challenge to the reasonableness of the deed
restrictions. . . A minimally competent and informed lawyer would not
make such a worthless argument" (¶27).
The court of appeals awarded to the plaintiffs costs, fees, and
reasonable attorney fees incurred as a result of the appeal.
Top of page
Right to Counsel - Sixth Amendment - Waiver
State v. Anson,
2002 WI App 270 (filed 9 Oct. 2002) (ordered published 20 Nov. 2002)
In July 2000 the state issued a warrant for Anson's arrest and filed
a multicount criminal complaint charging him with sexual contact with a
child. In August 2000, investigators approached Anson at his California
workplace to question him about the offense and arrest him on the
Wisconsin warrant. When Anson sought reassurance that he had not been
charged "with anything yet," the officers responded, "Right." The
officers also told him that he was "not under arrest." At no time was he
advised of his Miranda rights. During the interview, Anson made several
incriminating remarks. Early in the interrogation, Anson indicated that
he wanted to talk to his lawyer "on my side of the story." He was
arrested, stood trial in Wisconsin, and was convicted.
The court of appeals, in an opinion authored by Judge Brown,
reversed. The primary issue involved the contours of a defendant's Sixth
Amendment right to counsel in a "pretrial, post-charge setting." The
state conceded that Anson's Sixth Amendment right to counsel had
attached when he was questioned: formal criminal charges had been filed
and a warrant issued (see ¶13). The court declined to
decide whether Anson's statement about his lawyer "constituted an
invocation of counsel" that should have immediately terminated the
Rather, the court examined the following issue: "whether a defendant
must be sufficiently aware of the right to have counsel present during
police questioning and of the possible consequences of a decision to
forgo aid of counsel in order to make the 'choice' to knowingly waive
the right" (¶14).
The court reached the following conclusions. "At the onset of
post-charge pretrial police interrogations, the accused must be made
aware that the adversarial process has begun and that he or she can
request the assistance of counsel at the onset of post-charge pretrial
police interrogations. This can be accomplished by informing the accused
that he or she has been formally charged with a crime, by reading to the
accused the Miranda warnings, or by anything else that would inform the
accused that the adversarial process has begun" (¶19). In this
case, the California police officers did not read the Miranda warnings
and, in fact, "misled Anson into believing the State had not yet filed
In short, the state violated Anson's Sixth Amendment right to
counsel, and therefore his statements should have been suppressed. The
court further rejected the state's argument that Anson's "noncustodial"
status somehow dictated a different outcome. The Sixth Amendment right
is triggered by the "initiation of adverse judicial proceedings," not
the custodial setting of the interrogation (¶23).
Since Anson testified on his own behalf at trial, the next issue was
whether he waived his "right against self-incrimination" by taking the
stand (¶26). On remand, the circuit court was directed to conduct
an evidentiary hearing in which the "State bears the burden of showing
that its use of the unlawfully obtained statements did not induce
Anson's testimony" (¶29).
Not Guilty by Reason of Mental Disease or Defect - Revocation of
Conditional Release - Requirement for Hearing Within 30 Days Held to be
State v. Schertz,
2002 WI App 289 (filed 1 Oct. 2002) (ordered published 20 Nov. 2002)
The defendant was charged with two counts of battery by an inmate and
was found not guilty by reason of mental disease or defect. The court
ordered conditional release as the disposition.
The state subsequently filed a petition for revocation of conditional
release, but a hearing on the petition was not held within 30 days after
its filing. The circuit court held that the 30-day time limitation was
directory only. Following a hearing, it remanded the defendant to the
Winnebago Mental Health Institute.
The defendant appealed. The court of appeals, in a decision authored
by Judge Peterson, affirmed. Wis. Stat. section 971.17(3)(e) provides
that the court "shall" hear a petition to revoke an order for
conditional release within 30 days, unless the hearing or the time
deadline is waived by the detained person. The appellate court held that
the time limitation is directory rather than mandatory. Among other
things, the court noted that nothing in the statute's legislative
history suggests that the time limit should be mandatory, nor does the
statute itself prescribe any penalty for its violation.
Further, the court concluded that to adopt the defendant's position
that he should be released because his hearing was untimely would allow
for release regardless of the potential danger to the defendant or other
people. Accordingly, the failure to have a hearing within 30 days did
not cause the circuit court to lose competence to adjudicate the state's
Truth-in-Sentencing - Penalty Enhancers Do Not Increase Maximum Term
of Extended Supervision
State v. Volk, 2002
WI App 274 (filed 16 Oct. 2002) (ordered published 20 Nov. 2002)
This case involves a bifurcated sentence of confinement in prison
followed by extended supervision, imposed under Wisconsin's
truth-in-sentencing law. The defendant was convicted of a Class D
felony, for which the maximum term of initial confinement is five years.
If that maximum is imposed, the maximum term of extended supervision is
likewise five years. Because the defendant was found to be a repeat
offender under Wisconsin's habitual criminality statute, the circuit
court enhanced the defendant's sentence and ordered a six-year term of
initial confinement followed by a six-year term of extended
The issue before the court of appeals was whether the maximum term of
extended supervision may be increased by application of the habitual
offender penalty enhancer. In a decision authored by Judge Nettesheim,
the court concluded that, under the provisions of Wis. Stat. section
973.01(1)(c) (1999-2000), the penalty enhancer may be used to increase
the maximum initial term of confinement. However, the statute does not
authorize a sentencing court to impose any portion of a penalty enhancer
as extended supervision. Accordingly, the court of appeals reversed the
trial court and remanded the matter for resentencing of the defendant
consistent with the analysis of the law described above.
Truth-in-Sentencing - Sentencing Discretion - Consideration of
Victim's Good Character
State v. Gallion,
2002 WI App 265 (filed 10 Oct. 2002) (ordered published 20 Nov.
The defendant was convicted of homicide by use of a motor vehicle
while driving with a prohibited alcohol concentration. He received a
truth-in-sentencing bifurcated sentence of 21 years of confinement
followed by nine years of extended supervision.
On appeal the defendant argued that, under the truth-in-sentencing
laws, the constitution requires that sentencing courts justify with
great specificity the particular sentence imposed. He contended that he
had a constitutional right to have the court explain why it imposed 21
years of incarceration rather than a shorter or a longer period of
incarceration, such as 10, 15, 20, or 25 years. He urged that the
greater finality and certainty of truth-in-sentencing dispositions, as
compared to indeterminate sentences under prior law, require that a
sentencing court specify the reason for the particular amount of time it
chooses to impose.
In a decision authored by Judge Lundsten, the court of appeals
rejected the defendant's argument and agreed with the state that the
defendant failed to demonstrate that the existing rules governing
sentencing discretion are unconstitutional when applied to sentences
imposed under truth-in-sentencing statutes. Existing case law already
requires sentencing courts to state reasons for imposing a particular
sentence, and the defendant's claim that "the bar must be raised" was
not supported "with persuasive legal authority or reasoned argument"
The court also rejected the defendant's assertion that some form of
sentencing guidelines is constitutionally required. While the appellate
court did not disagree with the proposition that sentencing guidelines
and comparative data about sentencing provide helpful information to
sentencing courts, it found that the defendant did not provide any
authority for the proposition that such information is constitutionally
mandated. Nor was it persuaded by the defendant's contention that
because there is no parole under the truth-in-sentencing laws, new
sentencing standards must be imposed.
Also at issue in this case was whether the sentencing court
considered improper factors when imposing sentence. The defendant
argued, among other things, that the court improperly considered the
victim's good character. The victim had a 3-year-old son and was
described by the court as "an innocent woman, a good woman, a good
mother, a good daughter, a good friend" (¶ 20). The court went on
to say that the defendant extinguished the victim's life and forever
affected the lives of her son and other family members and thereby
inflicted "so much hurt on so many people" (¶ 20).
The appellate court concluded that the sentencing judge was entitled
to consider the victim's good character in the context of assessing the
harm caused by the defendant's crime. An offense's gravity encompasses
the harm caused by the offense. The court could find no Wisconsin
decision directly addressing whether a homicide victim's character,
standing alone, is a proper sentencing factor. However, the authority it
did locate supported the view that a victim's character may be
considered as a component of the "gravity of the offense," which is one
of the three primary sentencing factors. "We conclude that a sentencing
court may consider the effect of a homicide on the victim's family and
friends, and that such consideration may include the character traits of
the victim" (¶ 20).
Truth-in-Sentencing - 1997 Wisconsin Act 283 - No Reduction in
Confinement Time for Rehabilitation
State v. Champion,
2002 WI App 267 (filed 31 Oct. 2002) (ordered published 20 Nov.
The defendant was convicted of causing great bodily harm by operation
of a vehicle while under the influence of an intoxicant. She received a
truth-in-sentencing bifurcated sentence of three years of confinement in
prison followed by three years of extended supervision. At the
sentencing hearing, the court expressed hope that the sentence included
enough confinement time to allow the defendant to receive treatment for
her alcohol and drug abuse problems.
After about 14 months of confinement, the defendant moved to modify
the confinement portion of her sentence from three years to two years,
arguing that she would soon complete all of the programming available to
her in prison, and that she had met the rehabilitation objective of the
original sentence in less time than anticipated by the court. She
contended that her rapid completion of rehabilitation programs presented
a new sentencing factor warranting sentence modification. The circuit
judge denied the motion for modification.
In a decision authored by Judge Lundsten, the court of appeals
affirmed. It began its analysis by restating the law governing sentence
modification premised on the existence of a "new factor." A defendant
seeking modification based on a new factor must show that 1) the "new
factor" exists and 2) the "new factor" justifies modification of the
A "new factor" is "a fact or set of facts highly relevant to the
imposition of sentence, but not known to the trial judge at the time of
the original sentencing, either because it was not then in existence or
because, even though it was then in existence, it was unknowingly
overlooked by all of the parties." Rosado v. State, 70 Wis. 2d
280, 288, 234 N.W.2d 69 (1975). In addition, a "new factor" must be an
event or development that frustrates the purpose of the original
sentence. In this case the court concluded that events subsequent to
sentencing and relating to rehabilitation do not constitute a new
The defendant acknowledged that her rehabilitation argument would
have failed prior to truth-in-sentencing. A long line of cases decided
under Wisconsin's old indeterminate sentencing law held that
post-sentencing rehabilitation did not constitute a new factor
warranting a modification of sentence but was an issue best addressed by
the parole board. According to the defendant, the absence of parole in
the new truth-in-sentencing regime should cause the appellate court to
reconsider the limitations imposed prior to truth-in-sentencing with
respect to using rehabilitation as a new sentencing factor.
The appellate court disagreed. Instead, it accepted the state's
position that the defendant's proposal would contravene the legislative
intent behind truth-in-sentencing. With limited exceptions, the new
truth-in-sentencing statutes remove all prior provisions that might
allow reduction of an inmate's confinement based on the inmate's
In a footnote, the court observed that in 2001 Wis. Act 109 the
legislature enacted a limited right to seek sentence modification based
on post-sentencing rehabilitation. (See ¶ 7 n.6.) This
case, however, was decided under 1997 Wis. Act 283, which is Wisconsin's
original truth-in-sentencing law. In passing Act 283, "the legislature
intended that truth-in-sentencing create certainty as to the duration of
confinement at the time the sentence is imposed, something fundamentally
inconsistent with the open-ended availability of sentence modification
based on post-sentencing factors relating to rehabilitation" (¶
The court concluded by stressing that the opinion should not be read
as suggesting that the legislature has undone "new factor" case law.
"Nothing in this opinion affects a defendant's right to seek sentence
modification under existing 'new factor' law" (¶ 17).
Conflicts of Interest - Serial Representation - Pretrial Objection
by Defendant - "Substantial Relationship" Test Adopted
State v. Tkacz,
2002 WI App 281 (filed 16 Oct. 2002) (ordered published 20 Nov.
The prosecuting attorney in this criminal case had represented the
defendant in a civil forfeiture action before the prosecutor joined the
district attorney's office. The defendant sought to remove the
prosecutor prior to trial, claiming a conflict of interest.
In a decision authored by Judge Brown, the court identified the
proper standard for analyzing whether a conflict of interest exists in a
criminal serial representation case when the defendant raises the issue
before trial. It held that the proper standard is the "substantial
Wisconsin courts have already adopted the "substantial relationship"
test with respect to conflicts of interest in the civil context. In
Berg v. Marine Trust Co., 141 Wis. 2d 878, 416 N.W.2d 643 (Ct.
App. 1987), the court of appeals described the "substantial
relationship" test as follows: when an attorney represents a party in a
matter in which the adverse party is that attorney's former client, the
attorney will be disqualified if the subject matter of the two
representations is "substantially related." The two representations are
substantially related "if the lawyer could have obtained confidential
information in the first representation that would have been relevant in
the second" (¶ 13).
The court of appeals concluded that the "substantial relationship"
test embodies Wisconsin's current rules of professional responsibility,
and that its application will ensure that the ensuing criminal trial
will avoid any potential impropriety. The court then applied the test to
the facts before it and held that the circuit court did not erroneously
exercise its discretion when it decided that the defendant had not
established that a substantial relationship existed and therefore that
there was no conflict of interest. (See ¶ 16.)
Investigative Stops - Prolonged Detention
State v. Williams,
2002 WI App 306 (filed 3 Oct. 2002) (ordered published 18 Dec. 2002)
The state appealed a trial court order granting the defendant's
motion to suppress evidence discovered in his vehicle as well as
statements the defendant made after he was stopped by a police officer.
The state contended that the trial court erred in concluding that the
officer who stopped the defendant did not have the requisite reasonable
suspicion for an investigative detention.
In a decision authored by Judge Vergeront, the court of appeals
concluded that the officer had reasonable suspicion to stop the
defendant's vehicle to determine if he was the suspect in a domestic
abuse incident that had occurred four days earlier in the same vicinity.
The court next considered whether the officer's conduct subsequent to
the initial stop made the stop unlawful. The defendant argued that it
was improper for the officer to ask for his name and identification
because the officer knew at that point that the driver was not the
suspect in the domestic abuse incident. While there was some dispute
about whether the officer realized that the defendant was not the
domestic abuse suspect immediately upon stopping the vehicle, the court
concluded that even if that were true, it was still reasonable for the
officer to request his name and identification.
The court looked to its earlier decision in State v.
Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990), in
which it held that an officer's actions in requesting a license from the
driver of a disabled vehicle and in running a status check on the
license did not transform a lawful "motorist assist" into an unlawful
seizure. The Ellenbecker court posited reasons why the name and
identification of the motorist may be necessary: the officer may be
required to record citizen contact; the information may be helpful to
the officer in the event of later citizen complaints against him or her;
and the information may aid in the investigation of a crime, even though
at the time the driver's activity may be innocuous. For the same reasons
articulated in Ellenbecker, the court concluded in this case
that it was reasonable for the officer to ask for the defendant's name
As it turned out, the defendant had no identification and this
provided a reasonable ground for further detention. Under Wis. Stat.
section 343.18(1), persons operating motor vehicles are required to have
their licenses with them. The defendant's lack of identification was a
violation of this statute and a reasonable ground for suspecting that he
was not authorized to drive.
The court further concluded that the officer's request that a
colleague respond to the scene to positively identify the defendant was
reasonable and that once the officer was satisfied with the identity of
the defendant, it was reasonable for her to ask the police dispatcher to
determine whether the defendant had a valid driver's license. In a
footnote, the court observed that, even if the defendant had produced a
driver's license, the officer could have lawfully checked on the
Thereafter, the defendant allegedly consented to a search of the
vehicle, cocaine was found, and the defendant admitted that the drugs
were his and that he intended to sell them. However, the state of the
trial court record was such that the court of appeals could not
determine whether the officers unlawfully prolonged the detention to
obtain the consent to search, whether the defendant actually consented
to the search, whether the consent was voluntary, and whether there were
grounds to suppress the defendant's statements. The court therefore
remanded the case to the circuit court to make the specific findings of
fact necessary to decide these issues.
Post-conviction/Appellate Stages of Proceeding - Requirements for a
Proper Waiver of Counsel
State v. Thornton,
2002 WI App 294 (filed 14 Nov. 2002) (ordered published 18 Dec.
A person convicted in Wisconsin of committing a crime has a
constitutionally guaranteed right to appeal his or her conviction to the
court of appeals. An indigent defendant is constitutionally entitled to
the appointment of counsel at public expense for the purpose of
prosecuting his or her appeal as of right from a criminal conviction.
This case concerns waiver of post-conviction counsel. Although several
Wisconsin appellate opinions address the requirements for effecting a
valid waiver of trial counsel, there appears to be no state precedent
that squarely addresses the requirements for a proper waiver of
post-conviction or appellate counsel.
In a decision authored by Judge Deininger, the court of appeals
concluded that before a court may find that a criminal defendant has
knowingly and voluntarily waived his or her right to counsel on direct
appeal, it must satisfy itself that the defendant is aware of: 1) the
rights to an appeal, the assistance of counsel for the appeal, and the
no-merit report option; 2) the dangers and disadvantages of proceeding
pro se; and 3) the possibility that if appointed counsel is permitted to
withdraw, successor counsel may not be appointed to represent the
defendant in the appeal. "[E]nsuring that a defendant has received and
understands [this] information is both necessary and sufficient to
support a determination that the defendant's tendered waiver of counsel
is knowing and voluntary" (¶21).
The court of appeals also concluded that, given the nature of
appellate court proceedings, the necessary "colloquy" associated with
waiver may be accomplished by written communications with the defendant,
initiated either by the court or by counsel seeking to withdraw. In the
latter situation, the court must satisfy itself as to the sufficiency of
the content of counsel's documents and to their voluntary execution by
the defendant. If counsel moves to withdraw prior to the filing of a
notice of appeal, the motion should be directed to the circuit court and
a more traditional oral colloquy between the defendant and the court
should be employed.
If a waiver of appellate counsel is tendered to the court of appeals,
and the latter determines that the correspondence among counsel, the
defendant, and the court (or anything in the record, if it has been
filed), raises a question regarding the defendant's understanding of the
necessary information, the appellate court may either deny the waiver or
refer the matter to the circuit court to conduct a hearing. The same
would apply if the appellate court has reason to doubt the defendant's
competency for self-representation.
Substitution of Judge - No Judicial Obligation to Inform Defendant
that Judge Has Been a Crime Victim
State v. Tappa,
2002 WI App 303 (filed 26 Nov. 2002) (ordered published 18 Dec.
The defendant was convicted of burglary and of theft of a firearm. On
appeal he contended that his right to substitution of judge was violated
because the trial court judge failed to disclose that he had been the
victim of a burglary 10 years earlier.
Wis. Stat. section 971.20 provides a criminal defendant with the
right to one substitution of judge. The defendant claimed that if the
judge had informed him that the judge had been a burglary victim, the
defendant would have exercised his right to substitution. He urged that
a defendant must be fully informed in order to exercise the substitution
right, especially when the judge is a victim of a crime that is similar
to the defendant's charged crime.
In a decision authored by Judge Peterson, the court of appeals
concluded that there is no requirement in the substitution statute that
a judge inform a defendant of the right to substitution. Nor does the
statute state that a judge must provide facts bearing on a defendant's
exercise of this right.
The court recognized that there are safeguards that protect a
defendant's right to an impartial judge. For example, a judge is
required to recuse himself or herself if the judge cannot be impartial
in a particular case. Further, if a defendant is actually treated
unfairly by a judge, the defendant can argue a due process violation. In
short, the court saw the defendant's argument as having no logical
stopping point and as being both "impractical and unworkable"
Guilty Plea Hearings - Failure to Advise Defendant that Court not
Bound by Sentencing Recommendation
State v. Hampton,
2002 WI App 293 (filed 27 Nov. 2002) (ordered published 18 Dec.
The defendant was charged with second-degree sexual assault of a
child and entered a guilty plea pursuant to a plea negotiation in which
the state agreed to make certain sentencing recommendations. Before the
plea hearing, the defendant and his attorney prepared a guilty plea
questionnaire, which included an admonition that the court was not bound
to follow any plea agreement or recommendation made by the district
attorney, the defense attorney, or a pre-sentence report.
At the plea hearing, in response to questions from the court, the
defendant agreed that his attorney had read the information in the
guilty plea questionnaire to him and that he (the defendant) had signed
the form. However, during the plea colloquy, the court did not
personally inform the defendant that it was not bound by the plea
agreement's terms. Ultimately, the court imposed a disposition more
onerous than that recommended by the state.
The defendant moved to withdraw his plea, contending that the plea
colloquy was defective because the court failed to personally inform him
that it was not bound by the terms of the plea agreement. The motion
also asserted that the defendant did not, at the time of his plea,
understand that the court was not bound by the agreement. The defendant
requested an evidentiary hearing to resolve any factual dispute raised
by his motion. The circuit court denied the motion without an
evidentiary hearing. The court of appeals, in a decision authored by
Judge Lundsten, reversed.
In State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986),
the supreme court established a procedure for litigating allegations of
defective guilty pleas. The defendant must first make a prima facie
showing that the guilty or no contest plea was accepted in a process
that did not comply with the statute governing guilty pleas (Wis. Stat.
section 971.08) or another court-mandated duty. The defendant must also
allege that he or she did not know or understand the information at
issue. If the defendant makes this initial showing, the burden shifts to
the state to show by clear and convincing evidence that the plea was
knowingly and voluntarily entered.
Neither Bangert nor section 971.98 says that a court must
personally inform a defendant entering a guilty or no contest
plea that the court is not bound by the plea agreement's terms.
Nonetheless, this task was judicially mandated in State ex rel.
White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973). In the present
case the court of appeals concluded that circuit court judges must
personally inform defendants that the court is not bound by plea
agreement terms. It further concluded that whether this requirement has
been met in a particular case is subject to review under the
The court of appeals held that the defendant made the prima facie
showing required of him under Bangert. It agreed with the
defendant that once he made a prima facie showing of a deficient
colloquy, he was entitled to an evidentiary hearing on the issue of his
actual understanding, regardless of whether he made any additional
factual allegations and regardless of whether there was evidence already
in the record tending to show that he did understand that the court was
not bound by the plea agreement's terms.
The court rejected the state's argument that the defendant was not
entitled to a hearing because the record conclusively demonstrated that
he was not entitled to relief. The state alleged that the defendant's
plea withdrawal motion was conclusory and that the record showed that
the disputed information was read to the defendant by his attorney and
that the defendant indicated he understood the information by signing
the guilty plea questionnaire.
Adopting the defendant's arguments, the court held that because the
defendant made a prima facie showing under Bangert and
requested an evidentiary hearing to resolve disputed issues, it was
error to resolve the credibility issue without giving the defendant an
opportunity to present evidence.
Judge Roggensack filed a dissenting opinion.
Divorce - Claim of Unjust Enrichment Cannot be Litigated in Divorce
Dahlke v. Dahlke,
2002 WI App 282 (filed 30 Oct. 2002) (ordered published 20
Among the issues in this case was the question of whether a common
law claim for unjust enrichment can be litigated as part of a divorce
action. In a decision authored by Judge Nettesheim, the court of appeals
responded in the negative.
The court recognized that the term "unjust enrichment" has been used
in other decisions involving appeals of divorce proceedings. However,
this language was used to describe situations involving a financial
windfall to one of the parties, not as part of a judicial declaration
that an unjust enrichment claim can be litigated in a divorce
A common law unjust enrichment claim involves aspects of civil
procedure that do not apply to actions affecting the family. Such a
claim contemplates its own set of pleadings, separate and distinct from
those in a family court action. Further, an unjust enrichment action can
be tried to a jury whereas juries are not available in divorce actions.
Lastly, the appellate court was unable to locate any precedent that a
common law unjust enrichment claim can be litigated in a divorce
Termination of Parental Rights - Failure of Parent to Have
Parental Relationship with Child - Admissibility of Criminal Conviction
State v. Quinsanna
D., 2002 WI App 318 (filed 26 Nov. 2002) (ordered published 18
In October 1992 the appellant gave birth to twins. Two years later
the twins were removed from the appellant's care after the police raided
her residence and seized drugs, ammunition, and drug-dealing
paraphernalia. The appellant was prosecuted on drug charges and placed
In February 1995 the twins were found to be in need of protection or
services and were placed outside the appellant's home. They have lived
in foster care ever since. In the meantime, the appellant was sentenced
to 30 days in jail on a theft conviction and also was sentenced to 60
days in jail on a conviction for obstructing an officer. In addition,
she received a six-month sentence following revocation of her
In January 2001 the state petitioned for termination of the
appellant's parental rights to the twins, on the theory that the
appellant had failed to assume parental responsibility for the twins.
See Wis. Stat. § 48.415(6).
At a pretrial hearing, the state indicated its intention to introduce
the appellant's criminal convictions, not for the purpose of impeaching
credibility but instead as direct evidence of the appellant's failure to
assume parental responsibility. The circuit court admitted the evidence.
The appellant's parental rights were subsequently terminated. In a
decision authored by Judge Schudson, the court of appeals affirmed.
The appellant argued that use of her criminal history at trial should
have been limited to the fact and number of convictions and that
admission of those convictions at the trial amounted to receipt of
improper character evidence. The appellate court disagreed. The state
was not introducing the convictions to impeach credibility. Instead, the
drug offenses related specifically to the reason the twins were removed
from the appellant's home and the theft and obstructing offenses were
relevant to whether she had assumed parental responsibility for the
twins (in the sense that by committing more crimes she was exposing
herself to incarceration). The evidence was not admitted for the purpose
of proving that she acted in conformity with a character trait. Instead,
evidence of the appellant's crimes and sentences was introduced to prove
that she had failed to assume parental responsibility for the
Lastly, the court indicated that even if it were to accept the
appellant's characterization of the evidence of her criminal history as
"other acts" evidence under Wis. Stat. section 904.04(2), the evidence
still would have been admissible because the statute does not exclude it
when it is offered for purposes such as proving motive, opportunity, or
intent. In this case, the evidence was offered for such other purposes,
including proving the appellant's opportunity to assume parental
responsibility for the twins, her intent to do so, and the absence of
any mistake or accident preventing her from doing so.
Top of page
Reducing Clause - UIM - Unenforceable
Hanson v. Prudential
Property & Cas. Ins. Co., 2002 WI App 275 (filed 29 Oct.
2002) (ordered published 20 Nov. 2002)
Hanson was injured in an automobile accident and settled with the
tortfeasor, who paid the $150,000 limits of his liability insurance.
Since Hanson's damages exceeded this amount, he sought coverage under
his own underinsured motorist (UIM) coverage from Prudential, which
provided $100,000 for each person injured. Prudential, however, offered
only $25,000 of UIM coverage based on the policy's reducing clause. This
The court of appeals, in a decision written by Judge Cane, affirmed
the circuit court's ruling that the policy's reducing clause was fatally
ambiguous and thus unenforceable. In particular, the policy failed to
comply with Wis. Stat. section 632.32(5)(i), because the reducing clause
extended to payment sources beyond the three types listed in the statute
Moreover, even if the reducing clause had conformed to statute, it
was not "crystal clear" within the "context of the whole policy"
(¶18). As summarized by the court, "[t]he policy requires the
insured to leap too many hurdles in the form of assumptions and guesses.
Prudential contends an insurance policy does not become ambiguous merely
because the process of cross-referencing the declarations and limiting
provisions may be complex. While this is true, Prudential's policy goes
well beyond cumbersome page-flipping and clause substitution. An insured
would have to make guesses regarding which parts of the policy are which
and reconcile conflicting clauses in order to understand that his or her
UIM coverage will be determined by combining amounts received from other
sources.... The reducing clause's effect is not crystal clear in the
context of the whole policy" (¶29).
Coverage - "In Your Care"
Cierzan v. Kriegel,
2002 WI App 317 (filed 19 Nov. 2002) (ordered published 18 Dec.
Sixteen-year-old Jessica was watching television with her friend
Margaret Cierzan at Jessica's grandmother's home. Although Jessica had
her grandmother's permission to use the home, her grandmother had laid
down certain rules, including "no smoking." Jessica disobeyed her
grandmother and smoked, which started a fire that seriously injured
Cierzan. The trial court granted summary judgment to the grandmother's
homeowner's insurance company on the ground that Jessica was not an
insured under the policy because Jessica was not in her grandmother's
"care" at the time of the fire.
In an opinion authored by Judge Hoover, the court of appeals
affirmed. Physical presence of the insured caregiver is not a necessary
requirement for someone to be under the insured's care. Yet "there must
be some distinction between a person in the care of the insured -
because this person becomes an insured under the policy as well - and an
ordinary guest of the insured" (¶11).
In addressing this issue of first impression, the court looked to
eight relevant considerations, including whether the person has some
form of dependency on the insured, whether the insured has a supervisory
or disciplinary responsibility for the person, the person's age, and the
person's mental and physical health. On this record, four of the eight
factors suggested that Jessica was not under her grandmother's "care"
(¶14). Although the grandmother had laid down some rules, this was
insufficient to elevate the grandmother to a supervisory or disciplinary
role because "it is not uncommon for hosts to have rules for their
guests" (e.g., no smoking). Moreover, Jessica's age (16 years) suggested
some measure of independence from her grandmother. In short, Jessica and
Cierzan had gone to the grandmother's house for "fun," not because
Jessica needed assistance (or vice versa) (¶18).
Pre-paid Traffic Tickets - OCI
National Motorists Ass'n v.
Office of Commissioner of Insurance, 2002 WI App 308 (filed 14
Nov. 2002) (ordered published 18 Dec. 2002)
The National Motorists Association (NMA) offered its members a
pre-paid traffic ticket (PTT) program. For a $5 monthly fee for each
$100 of "fine protection," members may purchase up to $1,000 in
protection. The Office of the Commissioner of Insurance (OCI) concluded,
however, "that the PTT program was insurance and that NMA was not
authorized to solicit insurance business in Wisconsin or any other
state" (¶7). The NMA appealed the OCI's ruling.
The court of appeals, in an opinion written by Judge Vergeront,
affirmed. First, "the OCI's decision that the PTT program is insurance
is a reasonable interpretation and application of that term as used in
Wis. Stat. §§ 610.11 and 601.04(2)" (¶14). Second, "the
OCI's decision that NMA is doing an insurance business in this state is
a reasonable construction and application of Wis. Stat. § 610.11"
(¶18). Third, OCI's actions were not arbitrary or capricious. For
example, the OCI had a rational basis by which to distinguish prepaid
legal services plans and the PTT (¶26). Finally, the court rejected
a number of overbreadth and equal protection constitutional
Motor Vehicle Law
Implied Consent - Statutory Coercion Argument Rejected
State v. Wintlend,
2002 WI App 314 (filed 6 Nov. 2002) (ordered published 18 Dec. 2002)
The defendant was arrested for OWI, was informed of his obligations
under the implied consent statute, and submitted to a blood alcohol
test. He was convicted on the OWI charge. On appeal, he argued that the
implied consent law contains a threatened sanction of a loss of driving
privileges unless the arrested driver consents to the taking of a blood
test and that this threat constitutes a coercive measure, which
invalidates consent for Fourth Amendment purposes. In a decision
authored by Judge Brown, the court of appeals rejected this attack on
The appellate court characterized the defendant's position as an
argument that the implied consent law conditions receipt of one
constitutional right (the right to travel) on relinquishment of another
constitutional right (the Fourth Amendment right to be free from
governmental searches and seizures). Responding to this argument, the
court concluded that although there is a constitutional right to travel,
there is no constitutional right to operate a motor vehicle. The statute
does not presume to have a motorist give up one right in order to obtain
another. A motor vehicle operator's license extends to the motorist a
benefit - the privilege to drive on public highways. Further, the
conditioning of benefits upon the surrender of a right does not
automatically lead to a finding of unconstitutionality. In the Fourth
Amendment context, only unreasonable governmental intrusions are
In assessing the reasonableness of the coercive nature of the implied
consent statute, the court looked to see whether the law exerts any
unreasonable psychological compulsion upon Wisconsin motorists. The
court considered the issues of when the consent to blood alcohol testing
was obtained and whether the circumstances by which the consent was
gained are reasonable.
Relying on supreme court precedent construing the implied consent
statute, the court concluded that the consent to testing actually takes
place at the time the driver applies for and receives an operator's
license - not at the time of arrest and chemical testing. However, even
if the consent for testing is given after arrest, the court concluded
that the statute's coerciveness is not unreasonable. The United States
and Wisconsin supreme courts have both concluded that a blood alcohol
test is safe, relatively painless, and commonplace. None of the three
tests authorized by the implied consent statute is intrusive. "We
therefore conclude that the bodily intrusion the motorist is being asked
to allow, in return for retaining the license to drive, is a minimal
one. It is not a hard, unconscionable choice the motorist is being asked
to make" (¶ 17).
Implied Consent Refusal Hearings - Summary Judgment Not Available
State v. Baratka,
2002 WI App 288 (filed 1 Oct. 2002) (ordered published 20 Nov. 2002)
In this implied consent refusal case, the defendant submitted a
request for admissions pursuant to the civil discovery statutes.
See Wis. Stat. § 804.11. When the state did not respond,
he moved for summary judgment. The state then responded to the request
for admissions, denying each of them. It also filed a motion to withdraw
its admissions, the prosecutor indicating that he thought he had
obtained an extension of time for answering the requests.
The circuit court allowed the state to withdraw the admissions,
finding excusable neglect. The court then extended the time to respond
to the requests to the day when the state in fact responded. At a
subsequent refusal hearing, the court found that the defendant
unlawfully refused to submit to chemical testing, and it revoked his
The defendant appealed, arguing that the trial court erred in finding
that the state's failure to respond to his request for admissions
constituted excusable neglect, and that summary judgment should have
been granted. In a decision authored by Judge Peterson, the court of
appeals affirmed. Relying on a recent case in which the court of appeals
held that summary judgment does not apply in traffic forfeiture
prosecutions under Wis. Stat. chapter 345 [see State v.
Schneck, 2002 WI App 239], the court concluded that summary
judgment is likewise inapplicable in proceedings under chapter 343, in
which the implied consent law is codified. As in chapter 345
proceedings, chapter 343 does not require responsive pleadings that
would allow the court to determine if there is a material issue of fact
or law. Thus, summary judgment is unavailable in chapter 343
Worker's Comp - Exclusivity - Vicarious Liability
Kopfhamer v. Madison Gas
& Elec. Co., 2002 WI App 266 (filed 2 Oct. 2002) (ordered
published 20 Nov. 2002)
The Kewaunee Nuclear Power Plant is jointly owned by three power
companies, Wisconsin Public Service Corporation (WPSC), Wisconsin Power
and Light Company (WPL), and Madison Gas and Electric Company (MGE). The
plant was operated by WPSC, but WPL agreed to provide skilled employees
to perform maintenance work during scheduled shutdowns. Robert
Kopfhamer, a WPL employee who worked at the plant pursuant to this
agreement, was injured while on the job. He received worker's
compensation from his employer, WPL. He and his wife also commenced this
tort action against WPSC and MGE. The circuit court ruled that WPSC was
estopped from invoking the exclusivity provisions of the Worker's
Compensation Act (the act). The court also ruled that MGE was not
vicariously liable for Kopfhamer's injury.
The court of appeals, in a decision authored by Judge Anderson,
reversed in part and affirmed in part. First, the court held that as a
matter of law WPSC was entitled to summary judgment based on the act's
exclusivity provisions. Under Wis. Stat. sections 102.29(6) and
102.01(2)(f), WPL was a "temporary help agency" because "it was an
employer who placed its employee [plaintiff] with an employer (WPSC) who
controlled the employee's work activities and compensated the first
employer (WPL) for the employee's services" (¶23). Section
102.29(6) bars claims in tort against an employer that compensated a
temporary help agency for services.
The court next addressed the cross-appeal brought by the plaintiffs
regarding the dismissal of MGE, which it affirmed. On this issue it was
"dispositive" that WPSC was an "independent contractor" (¶27).
Since MGE had "surrendered to the operating company [WPSC] its right to
supervise and control the employees of the plant," in no sense was WPSC
an "agent" of MGE. Thus, MGE was not vicariously liable for damages
sustained by the plaintiff.
Insurance Agents - Negligence - Coverage
Poluk v. J.N. Manson Agency
Inc., 2002 WI App 286 (filed 29 Oct. 2002) (ordered published
20 Nov. 2002)
A jury found that an insurance agency (Manson) had negligently failed
to inform the insured about a "vacancy clause" in a policy that excluded
coverage for a building that burned down shortly before it was to be
sold. The court of appeals affirmed, in an opinion written by Judge
The primary issue concerned the insurance agent's duty to inform the
insured about the vacancy clause and to clarify the extent of the
requested coverage. The court of appeals held that the trial court
properly found that if the insured informed the agent that the
"building's tenant was vacating," then the agent had a "duty to inquire
further in order to provide coverage for the building" as requested by
the insured, which "sought coverage for the building until it was sold."
Thus, the agent "should have considered the possibility that the
building would be vacant for at least sixty days before the sale" and
informed the insured that the current policy would be inadequate because
of the vacancy clause (¶14). It was this "knowledge of the
insured's desires" that distinguished this case from those cited by the
Put differently, the agent's knowledge that the tenant would be
leaving by the end of the month, the building was going to be placed for
sale, the insured wanted coverage to continue, and the policy contained
a vacancy exclusion "triggered" its duty. (See
¶¶21-23.) "While we do not expect insurance agents to be
clairvoyant, when they are presented with information suggesting an
exemption clause might be triggered in a policy being renewed, they have
a duty to inquire further. To hold otherwise would be to absolve the
agent[s] of their duty to obtain the insurance requested by the insured"
The court also addressed several lesser issues. It found that the
evidence supported the verdict, the introduction of the owner's will was
harmless error, and a letter written by the plaintiff's lawyer was not
admissible to impeach an expert.
Joint and Several Liability - 1995 Amendment
Thomas v. Bickler,
2002 WI App 268 (filed 1 Oct. 2002) (ordered published 20 Nov. 2002)
The plaintiff was seriously injured by fireworks during a July 4th
celebration. A jury awarded her $2.8 million and apportioned causal
negligence among the defendants as follows: 50 percent on the Oconomowoc
Lake Club, 19 percent on the village of Oconomowoc Lake, and 31 percent
on Bartolotta Fireworks. In motions after verdict, the plaintiff argued
that because she was undisputedly free of any negligence, the 1995