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    Court of Appeals Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 76, No. 2, February 2003

    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

    * *

    Civil Procedure

    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 N.W.2d 715.

    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

    Jensen v. 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. 2002)

    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 subdivision" (¶18).

    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

    Criminal Procedure

    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 interrogation.

    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 charges" (¶20).

    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 Directory Only

    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 petition.

    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 supervision.

    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. 2002)

    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" (¶ 8).

    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. 2002)

    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 sentence.

    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 sentencing factor.

    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 rehabilitation.

    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" (¶ 13).

    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. 2002)

    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 relationship" test.

    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 and identification.

    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 license's status.

    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. 2002)

    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. 2002)

    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" (¶14).

    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. 2002)

    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 Bangert analysis.

    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.

    Family Law

    Divorce - Claim of Unjust Enrichment Cannot be Litigated in Divorce Action

    Dahlke v. Dahlke, 2002 WI App 282 (filed 30 Oct. 2002) (ordered published 20

    Nov. 2002)

    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 proceeding.

    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 action.

    Termination of Parental Rights - Failure of Parent to Have Parental Relationship with Child - Admissibility of Criminal Conviction Evidence

    State v. Quinsanna D., 2002 WI App 318 (filed 26 Nov. 2002) (ordered published 18 Dec. 2002)

    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 on probation.

    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 probation.

    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 children.

    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.

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    Insurance

    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 action followed.

    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 (¶17).

    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. 2002)

    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 challenges.

    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 statute.

    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 constitutionally proscribed.

    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 operating privileges.

    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 hearings.

    Torts

    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 Cane.

    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 defendants (¶16).

    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" (¶23).

    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 amendm




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