Vol. 76, No. 3, March 2003

Court of Appeals Digest

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

Appellate Procedure Criminal Law Civil Procedure Criminal Procedure Employment Law

Evidence Family Law Motor Vehicle Law Real Property

Appellate Procedure

Family Law - Appeals Involving Child Support Orders - Time for Commencing Appeal

Campbell v. Campbell, 2003 WI App 8 (filed 4 Dec. 2002) (ordered published 29 Jan. 2003)

In a 1992 divorce case, the circuit court ordered the husband to pay child support of $46 per week. That 1992 order was still in place in 1998 when the husband's ex-wife brought a motion for the husband to be held in contempt for his failure to notify her and the court of a change in his ability to pay support. The motion was premised on information that the husband was earning significantly higher wages. The court made a temporary order increasing the husband's support obligation to $800 per month.

Subsequently, the court held a hearing to address the contempt motion and then made a series of orders. First, on Sept. 29, 2000, the court set child support but left the amount of arrearages unresolved until a court-ordered audit could be performed. Second, after the audit was performed, the court issued an order on Aug. 7, 2001, incorporating the audit and settling the arrearages question, leaving open only the matter of attorney fees. Third and last, on Nov. 16, 2001, the court issued an order settling the question of attorney fees. The husband filed an appeal on Feb. 11, 2002. His ex-wife argued that the appeal must be dismissed as untimely under Wis. Stat. section 808.04(1), which requires that an appeal be filed within 90 days of the entry of a final judgment or order.

In a decision authored by Judge Anderson, the court of appeals concluded that the husband's appeal was untimely. The Aug. 7, 2001 order constituted the final order of the court. This order settled both the support and arrearages questions. The only matter left to be determined was whether attorney fees would be ordered, and if so, in what amount. In the family law context an order resolving the merits of a child support dispute but not an attorney fee issue is final within the meaning of section 808.03(1).

Because the court of appeals established that the Aug. 7, 2001 order was the final order on the merits, the husband had 90 days from that date to file his appeal. Because he did not do so until Feb. 11, 2002, his appeal was not timely.

Civil Procedure

Motions to Dismiss - Summary Judgment - "Conversion" Notice

CTI of Northeast Wisconsin LLC v. Herrell, 2003 WI App 19 (filed 17 Dec. 2002) (ordered published 29 Jan. 2003)

CTI sued the Herrells, who filed a motion to dismiss the complaint for failure to state a claim under Wis. Stat. section 802.06(2)(a)6. The Herrells later submitted a brief in support of their motion and included an affidavit with the brief. CTI questioned the appropriateness of the affidavit or any "evidence" with regard to a motion to dismiss for failure to state a claim, yet indicated that it would provide supporting evidentiary material in the event the Herrells pursued summary judgment. Without a hearing, and solely on the briefs, the circuit court "converted" the motion to dismiss for failure to state a claim into one for summary judgment, which it then granted in favor of the Herrells.

The court of appeals, in an opinion authored by Judge Hoover, reversed. Section 802.06(2)(b) "requires the court to notify parties of its intent to convert a motion to dismiss for failure to state a claim to one for summary judgment" (¶5). Conversion is left to the trial court's discretion under the rule. "Until and unless the court notifies the parties it will not exclude 'matters outside of the pleadings' and will therefore treat a motion as one for summary judgment, the parties will be uncertain of their rights and responsibilities. Thus, we conclude that when a court converts a motion to dismiss for failure to state a claim into a motion for summary judgment pursuant to Wis. Stat. § 802.06(2)(b), the court must notify the parties and provide them a reasonable opportunity to present material made pertinent by Wis. Stat. § 802.08" (¶8).

On this record, no such notice was given to CTI nor, under the circumstances, should CTI have reasonably anticipated the court's action; thus, the entry of summary judgment against CTI violated the rules of civil procedure and denied CTI its due process rights. The court of appeals held that on remand, the circuit court may exclude the offending affidavit and decide the motion to dismiss for failure to state a claim or convert that motion into one for summary judgment and offer both sides the opportunity to present appropriate evidence.

Criminal Law

Felony Murder - Liability for Murder when Defendant is a Party to the Underlying Felony

State v. Krawczyk, 2003 WI App 6 (filed 19 Dec. 2002) (ordered published 29 Jan. 2003)

Among the issues in this case was the question of whether a person can be found guilty of felony murder if he or she is a party to a crime included in the felony murder statute and a death results from the crime. In this case the defendant and three other people devised a plan to rob a specific person. While the defendant and a driver waited in the car outside the victim's home, their two confederates committed the planned armed robbery, during the course of which they killed the victim.

The state charged the defendant with felony murder as well as other crimes. He pleaded guilty to this and other charges but then sought to withdraw his plea, contending that he was not accurately informed about the elements of felony murder. He claimed that the jury instructions and case law he reviewed with his attorney at the time of his plea left him with the impression that the felony murder statute only required the state to prove that he was a party to the underlying crime of armed robbery and that the commission of the armed robbery caused the victim's death. He contended that he now believed this statement of elements to be erroneous because, in his view, his own conduct had to be a substantial factor in producing death in order for felony murder liability to accrue.

In a decision authored by Judge Deininger, the court of appeals concluded (as it had done before in State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994)) that "it is the defendant's conduct in facilitating the underlying crime that triggers felony murder liability when a death results from the crime, there being no requirement that a defendant's conduct be physically related to the fatal shot or assault" (¶ 21). Accordingly, the defendant was not misinformed about the elements of felony murder at the time he entered his plea, and he thus failed to establish that his plea to that crime was not knowing, intelligent, and voluntary.

Criminal Procedure

Extended Supervision - "Dating" Restrictions

State v. Koenig, 2003 WI App 12 (filed 18 Dec. 2002) (ordered published 29 Jan. 2003)

Koenig was convicted of forgery for taking and forging checks belonging to a man with whom she lived for several months. She was placed on probation, which was revoked after she again stole and forged checks from other "boyfriends." The judge sentenced her to a term in prison followed by several years of extended supervision. Among the conditions placed on her extended supervision was that Koenig "introduce to her agent, immediately, any person she is dating to discuss her prior record." On appeal Koenig argued that the ambiguity of the term "dating" rendered the condition unconstitutionally vague.

The court of appeals, in an opinion written by Judge Nettesheim, affirmed. Pointing to a "recently enacted definition of 'dating relationship' provided in Wis. Stat. § 813.12(1)(ag)," which pertains to domestic restraining orders and injunctions, the court concluded that Koenig had "fair and adequate notice that she must introduce to her agent any person with whom she is involved in an intimate social relationship" (¶¶ 12, 14). The statute excludes from the definition "'a casual relationship or an ordinary fraternization,' but common sense would also lead one to arrive at that distinction" (¶14).

Restitution - Special Damages

State v. Loutsch, 2003 WI App 16 (filed 26 Dec. 2002) (ordered published 29 Jan. 2003)

The defendant, Loutsch, was convicted of several crimes stemming from an altercation with his father-in-law. While being pursued by police, Loutsch twice backed his car into the squad car. The collision aggravated the police officer's pre-existing wrist injury, and the officer required surgery. Following Loutsch's convictions and sentencing, the court held a hearing on restitution at which the state demanded more than $33,000 in restitution for the officer's injuries, including more than $26,000 for sick leave (522 hours). Because under the officer's employment contract, any unused sick time is figured into his retirement benefits, the circuit court concluded that "the loss of sick leave was a real loss" to the officer.

The court of appeals, in a decision authored by Judge Vergeront, affirmed in part and reversed in part. The court held that the officer's sick leave constituted a "special damage" within the meaning of Wis. Stat. section 973.20(5)(a) because it could have been claimed in a civil action. The court analogized the lost sick leave to future lost earning capacity. Although neither type of damage can be calculated with certainty or exact data, both types are sufficiently provable and not speculative.

The case was remanded, however, for a determination of Loutsch's ability to pay restitution. The trial court had deferred the finding because "of the difficulty in deciding now what his financial situation would be after his release from prison and during his extended supervision and probation." The court of appeals held that whatever the difficulties, section 973.20 requires that such findings be made at sentencing regardless of future contingencies. (Statutory provisions permit later adjustments.)

Interrogation - Request for Counsel

State v. Fischer, 2003 WI App 5 (filed 18 Dec. 2002) (ordered published 29 Jan. 2003)

In a decision authored by Judge Nettesheim, the court of appeals affirmed Fischer's conviction for burglary. The first issue on appeal concerned the sufficiency of Fischer's "invocation of the right to counsel." In essence, Fischer argued "that when he told police that if they read him his rights, he would not answer any questions and would request an attorney, he was clearly and unequivocally demanding an attorney" (¶13). The court rejected this argument. Prevailing case law requires a clear and unambiguous request for counsel. Not every "reference to an attorney" shuts down an interrogation or requires officers to "clarify" the suspect's intent.

On the record before it, the court held that Fischer's "statement to detectives that if the officers read him his rights he would not answer any questions and would request an attorney is sufficiently ambiguous or equivocal such that a reasonable officer in light of the circumstances would have understood only that [he] might be invoking the right to counsel" (¶19). Such a "conditional and futuristic request for counsel" fell short of the "clear and unequivocal" request protected by the Miranda doctrine.

The second, closely related, issue was whether Fischer's exchange with police constituted a "custodial interrogation" that required that police advise him of his Miranda rights and secure a valid waiver. The Miranda doctrine defines "interrogation" according to the following standard: "if an objective observer (with the same knowledge of the suspect as the police officer) could, on the sole basis of hearing the officer's remarks or observing the officer's conduct, conclude that the officer's conduct or words would be likely to elicit an incriminating response, that is, could reasonably have had the force of a question on the suspect, then the conduct or words constitutes interrogation" (¶27).

On this record, "the entire exchange" between Fischer and the officer consisted of Fischer "asking about the evidence against him," and the officer "merely responding to Fischer's questions, after which Fischer would implicate himself" (¶33). Under the "unusual circumstances" of this case, the officer's words and conduct in response to Fischer's questions were not the functional equivalent of questioning.

Multiple Convictions Obtained Pursuant to Plea Agreement - Appeal of Some But Not All Convictions - Scope of Appellate Review

State v. Lange, 2003 WI App 2 (filed 18 Dec. 2002) (ordered published 29 Jan. 2003)

The defendant had two unrelated cases pending against him at the same time. The parties reached a plea agreement in which the state made concessions in both cases. Pursuant to the plea agreement, the defendant entered no-contest pleas and was found guilty in both cases. The defendant subsequently pursued post-conviction relief in only one of the cases, arguing that his no-contest plea was not voluntarily and knowingly made. The circuit court denied the post-conviction motion.

In a decision authored by Judge Nettesheim, the court of appeals reversed. It concluded that the defendant made a prima facie showing that the plea colloquy was inadequate, because the trial court failed to ascertain that the defendant understood the elements of the charged offense at the time of the plea hearing. It remanded the case for further proceedings in the circuit court to determine if the state can demonstrate by clear and convincing evidence that the defendant's plea was nevertheless knowingly and voluntarily entered. See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986). The court of appeals held that if the state meets its burden at the remand proceedings, the trial court shall reinstate the one conviction that was challenged on appeal.

The court of appeals also concluded that if, on the other hand, the state fails to satisfy its burden at the remand proceedings, the trial court is authorized to vacate both judgments of conviction (including the conviction not challenged on appeal) and to reinstate the original charges against the defendant in both cases. The appellate court recognized that no Wisconsin case has heretofore addressed the appropriate remedy when, as in this case, the repudiated plea agreement encompasses multiple judgments, some of which were not embraced by the appellant's notice of appeal. However, because all of the defendant's convictions stemmed from a single global plea agreement, the trial court may vacate all of those convictions and reinstate all of the original charges against the defendant.

In a footnote the court emphasized that, while it authorized the trial court to vacate both judgments of conviction, it was not "direct[ing]" the trial court to vacate the judgment that was not appealed, should the trial court ultimately determine that the defendant's plea in the appealed case should be withdrawn. The trial court should consider the special circumstances of the case, including both the defendant's and the state's interests, when deciding the scope of the remedy. See ¶ 47 n.14 (citing State v. Robinson, 2002 WI 9).

Employment Law

Wage Payments - Penalties

Hubbard v. Messer, 2003 WI App 15 (filed 3 Dec. 2002) (ordered published 29 Jan. 2003)

Hubbard alleged that his employer failed to pay his wages. The Department of Workforce Development (DWD) initially concluded that the employer owed Hubbard a total of about $3,900 in back pay. After being pressed, the employer eventually paid the back wages to Hubbard, who resolved the dispute outside of the DWD's administrative framework. Hubbard later began a suit under Wis. Stat. section 109.11(2)(b) seeking "penalty" wages, contending that under the statute penalties may be assessed for the untimely payment of wages. The employer contended, however, that no penalty could be assessed because the wages had been paid (albeit late). The trial court agreed with Hubbard and assessed a penalty equal to 70 percent of the late wages.

The court of appeals, in an opinion written by Judge Hoover, reversed. The prime issue was the meaning of "wages due and unpaid" in section 109.11(2)(b). Under Wis. Stat. chapter 109 an employee may pursue administrative remedies through the DWD or pursue a private civil action in the circuit court. The penalty structure of chapter 109 "encourage[s]" the administrative remedies. The court held that "under the plain language of § 109.11(2)(b), penalties may only be applied when wages are due and unpaid at the time an enforcement action is commenced in court" (¶11).

The court noted that an unscrupulous employer "may with impunity wrongfully delay paying earned wages," yet the holding was compelled by the "unambiguous legislation" (¶12). The rule found some support in a scenario in which an employer pays wages due and considers the matter settled, "only to be sued months later by an employee who never previously mentioned a penalty" (¶13). In short, the "DWD's involvement is encouraged because the legislature trusts the DWD will be able to resolve most claims or the employer and employee will be able to settle their dispute without further court action or penalties" (¶13). Although Hubbard had "ample opportunity to enforce the DWD's rulings and collect penalties," he "chose not to seek the remedies available to him" under the administrative framework. Once the employer paid the back wages, Hubbard lost his "wage claim" and his access to court-ordered penalties (¶17).

Evidence

Husband-Wife Privilege - Exceptions

State v. Richard G.B., 2003 WI App 13 (filed 12 Dec. 2002) (ordered published 29 Jan. 2003)

The court of appeals affirmed the defendant's conviction on several counts of child sexual assault involving a teenage girl. The primary issue on appeal concerned the trial court's admission into evidence of an incriminating statement made by the defendant to his wife. The defendant said that admission of the statement was barred by the husband-wife privilege. The trial court admitted it pursuant to the exception for a proceeding in which one spouse is charged with a crime against a third person that is "committed in the course of committing a crime against the other" spouse.

The court of appeals, in an opinion authored by Judge Vergeront, affirmed. The statement by the defendant to his wife concerned a vibrator found in his car. According to the victim, the defendant stated that it was for her, the victim. Later, the defendant told his wife that the vibrator was intended for the wife. In any event, the statement was privileged and inadmissible unless it fell within an exception to the privilege.

Under section 905.05(3)(b), the court found it inconsequential "whether the acts of the defendant that constitute a crime against a third party [here, the girl] are the same acts that constitute a crime against the spouse or different acts." Nor did it matter "whether a crime against the spouse is the 'primary crime' rather than incidental to, or a necessary by-product of, a crime against the third party. The purpose of the third party exception in para. (3)(b) is best carried out if committing a crime against one's spouse is interpreted to encompass conduct that is both itself a crime against a third party and a crime against one's spouse" (¶15).

The defendant's act of sexual intercourse with the girl (i.e., the sexual assault) also constituted the felony of adultery, a crime against his wife. "It may be that adultery is no longer prosecuted as a crime, and that many people no longer view adultery as deserving of criminal punishment. But adultery is nevertheless defined as a crime under the statutes of this state" and thus constitutes a "crime" within the meaning of the exception (¶16). (The defendant also appealed his 18-year sentence, which the court also affirmed.)

Family Law

Divorce - Stipulation Modifying Maintenance - Trial Court Approval Required

Polakowski v. Polakowski, 2003 WI App 20 (filed 17 Dec. 2002) (ordered published 29 Jan. 2003)

The parties were divorced in 1999. Pursuant to a stipulation, the court ordered the husband to pay maintenance to the wife. In 2001 the husband filed a motion for modification, because his ex-wife was living with another man with whom she was sharing expenses. The court modified the maintenance obligation.

After the court entered the modification order, the parties continued to negotiate further revisions to the maintenance order in lieu of the husband filing an appeal. The wife's attorney notified the husband's attorney in writing that the wife planned to accept the husband's proposed terms, but the wife's attorney requested that the husband's attorney prepare and forward the stipulation. However, the wife then withdrew her consent to the stipulation. In the meantime, the time for the husband to appeal the maintenance modification order expired. The husband then filed a motion with the circuit court for an order to enforce the stipulation the parties had agreed on. The circuit court denied the motion and the court of appeals, in a decision authored by Judge Hoover, affirmed.

A rule of civil procedure, Wis. Stat. section 807.05, provides that no agreement, stipulation, or consent between parties or their attorneys shall be binding unless it is made in writing and subscribed by the party or the party's attorney. The husband argued that because his ex-wife's attorney told his attorney in a letter that the wife would agree to the proposed stipulation, this statute applies, and the wife is bound to the stipulation.

The appellate court disagreed. The rules of civil procedure generally govern practice and procedure in civil cases, except when a different procedure is prescribed by statute or rule. See Wis. Stat. § 801.01(2). In this case the court concluded that the matter at issue (a motion to modify maintenance) was an action affecting the family and that the specific language of section 767.10(1), which controls stipulations in divorces, should be applied. Section 767.10(1) provides that the parties in an action for an annulment, divorce, or legal separation may, subject to the approval of the court, stipulate for certain matters like maintenance payments. Accordingly, any agreement made by the parties after their divorce action was commenced required the court's approval. The husband thus could not rely on the more general provision of section 807.05 to compel his ex-wife's compliance with their agreement to modify maintenance.

The husband also argued that the trial court's refusal to enforce the stipulation, based solely on the wife's withdrawal of consent, was erroneous. However, repudiation of consent to a stipulation may render the stipulation nonexistent. A court's subsequent refusal to incorporate the stipulation into the judgment cannot be said to be an erroneous exercise of discretion.

Motor Vehicle Law

OWI - Search Warrant Not Required to Test Blood Sample Taken Without Driver's Consent

State v. Riedel, 2003 WI App 18 (filed 26 Dec. 2002) (ordered published 29 Jan. 2003)

The defendant was arrested for OWI, and a sample of his blood was drawn without his consent. He moved to suppress the analysis of his blood sample, arguing that the police were required to obtain a search warrant before submitting the blood sample for testing.

The court of appeals, in a decision authored by Judge Nettesheim, rejected the defendant's argument. The court relied on Wisconsin appellate opinions that stand for the proposition that "the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant. [These decisions] refuse to permit a defendant to parse the lawful seizure of a blood sample into multiple components" (¶ 16 (quoting State v. Van Laarhoven, 2001 WI App 275, ¶ 16)).

In this case the initial warrantless nonconsensual draw of the defendant's blood was constitutional based on the exigent circumstances exception to the warrant requirement of the Fourth Amendment. The appellate court concluded that the subsequent analysis of the defendant's blood was simply the examination of evidence obtained pursuant to a valid search, and that no search warrant was necessary to conduct that further examination.

Real Property

Residential Leases - Attorney Fee Clauses - Enforceability

Dawson v. Goldammer, 2003 WI App 3 (filed 4 Dec. 2002) (ordered published 29 Jan. 2003)

As succinctly noted by the court of appeals, "[t]his case presents the natural corollary to Baierl v. McTaggart, [2001 WI 107]," in which the "supreme court held that a landlord who includes an attorney fee provision in a residential lease, which is specifically prohibited by Wis. Admin. Code § ATCP 134.08(3), may not enforce the terms of a lease against tenants who had prematurely abandoned the rental property." Unlike Baierl, in which a landlord sought to recover lost rent from a tenant, this case concerned tenants who sought to enforce against the landlords a lease containing a similar attorney fee provision. The trial court ruled that the attorney fee provision "voided" the lease, rendering it unenforceable by either party.

The court of appeals, in an opinion written by Judge Brown, reversed. First, scrutinizing Baierl and the purpose behind the ATCP regulation, the court held "the prohibition on attorney's fees clauses is intended to protect tenants, and thus, a tenant could seek enforcement of a lease containing such a clause" (¶9). Indeed, "[t]o refuse to allow a tenant in this situation to enforce the lease would stand the rationale of the Baierl decision on its head by punishing the class the regulation is intended to benefit and permitting the landlord to unfairly reap the benefit of the clause's inclusion" (¶9). Nonetheless, the tenants could not have "the best of both worlds" (¶10). Although "a landlord cannot seek damages for abandonment of a lease that has an ATCP violation, a tenant who seeks to prospectively enforce the lease has waived his or her rights pursuant to Baierl in the event of a breach on the part of the tenant" (¶11).

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