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    Court of Appeals Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 76, No. 4, April 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

    * *

    Criminal Procedure

    Territorial Jurisdiction - Jury Instructions

    State v. Brown, 2003 WI App 34 (filed 2 Jan. 2003) (ordered published 25 Feb. 2003)

    Among the issues in this case was the question of whether or when a jury must be instructed on the state's burden to establish its territorial jurisdiction over the defendant for the crime(s) with which the defendant is charged. This is a question of first impression in Wisconsin. In a decision authored by Judge Deininger, the court of appeals concluded that "a jury instruction on territorial jurisdiction is required only when a genuine dispute exists regarding the facts necessary to establish Wisconsin's territorial jurisdiction over a charged crime" (¶ 23).

    Wis. Stat. section 939.03 codifies Wisconsin's assertion of territorial jurisdiction over crimes. There is no dispute that the state is obligated in all prosecutions to establish its territorial jurisdiction over a defendant for charged offenses. The question is whether the determination that territorial jurisdiction exists is to be made by the court or a jury.

    The court of appeals concluded that the proper answer to this question depends on the circumstances in a given case. The court looked to a "Law Note" to Wisconsin JI-Criminal 268 to help resolve the issue. The "Law Note" concludes that if the jurisdiction issue depends on contested factual issues, those issues are for the jury to determine, using the beyond-a-reasonable-doubt standard. If the charging document does not properly allege that the crime was committed within the territorial jurisdiction of Wisconsin, the trial court should grant a motion to dismiss. If the jurisdictional dispute presents a purely legal question, that is, whether the law confers jurisdiction over a defendant for a crime based on an undisputed factual situation, the court should decide that question. But if the charging document sufficiently alleges facts in support of jurisdiction and there is a dispute about those facts, the issue will be for the jury to decide.

    The court of appeals said that the conclusions in the "Law Note" are persuasively supported by the authorities cited therein, as well as by a more recent case in which the Indiana Supreme Court concluded that if there is no serious evidentiary dispute that the trial court has territorial jurisdiction, then a special instruction on territorial jurisdiction need not be given to the jury. See Ortiz v. State, 766 N.E.2d 370 (Ind. 2002).

    Evidence - Defense Experts - Character and Profiles

    State v. Walters, 2003 WI App 24 (filed 15 Jan. 2003) (ordered published 25 Feb. 2003)

    Walters was convicted of three counts of sexually assaulting a child. On appeal he raised two claims of error. The court of appeals, in an opinion written by Judge Snyder, reversed and ordered the case remanded for a new trial.

    Relying on State v. Davis, 2002 WI 75, which in turn upheld State v. Richard A.P., 223 Wis. 2d 777 (Ct. App. 1998), the court of appeals held that the trial judge erred by excluding defense experts who would have testified that the defendant "did not exhibit character traits consistent with a sexual disorder and that because he did not possess such traits, he would have been unlikely to have committed a sexual assault" (¶22). The case law expressly permits this type of evidence, the probative value of which was not outweighed by other factors. The court of appeals, however, rejected the defendant's second contention that he should have been permitted to offer additional expert testimony on memory, suggestion, and the proper protocol for interviewing child witnesses. The trial judge properly found that much of the proffered expert testimony fell within the sphere of common sense and was of little probative value (see ¶29).

    Restitution - Defendant's Conduct as a "Substantial Factor" in Producing Harm

    State v. Rash, 2003 WI App 32 (filed 28 Jan. 2003) (ordered published 25 Feb. 2003)

    The defendant pleaded guilty to a charge of armed robbery. In the incident at issue, the victim was walking to his locked car in a supermarket parking lot when the defendant, who had a gun and was assisted by accomplices, intercepted the victim and forced him into a van. Before being accosted, the victim had used a remote control device to unlock his car doors. The defendant and his accomplices drove off with the victim and robbed him. The victim's car was left behind at the supermarket with unlocked doors. Someone other than the defendant or his accomplices took the car from the parking lot. When the car was subsequently found, it was damaged and property had been taken from it.

    The state asked the trial court in the robbery case to order the defendant to pay restitution for the damage to the victim's car, even though it conceded that it had no evidence that the car was either taken or entered by the defendant or his accomplices. The sentencing court ordered restitution.

    In a decision authored by Judge Fine, the court of appeals affirmed. Wis. Stat. section 973.20(1r) and (2) provides that a trial court "shall order the defendant to make full or partial restitution ... if a crime considered at sentencing resulted in damage to or loss or destruction of property." The issue presented by this appeal was whether the defendant could be ordered to pay for damage and loss caused by someone else when it is reasonable to conclude that there would have been no loss or damage if the defendant had not unlawfully abducted the victim from the parking lot, leaving the victim's car unlocked and vulnerable. The court of appeals held that restitution was properly ordered.

    Before restitution can be ordered, there must be "a causal nexus" between the crime considered at sentencing and the damage. "In proving causation, a victim must show that the defendant's criminal activity was a 'substantial factor' in causing damage. The defendant's actions must be the 'precipitating cause of the injury' and the harm must have resulted from 'the natural consequences of the actions.'" State v. Canady, 2000 WI App 87, ¶ 9. In this context, "precipitating cause" merely means "that the defendant's criminal act set into motion events that resulted in the damage or injury" (¶ 7).

    In this case it was reasonable for the circuit court to conclude that, but for the defendant's crime, the victim's car would not have been taken and damaged and that the victim's property in the car would not have been stolen. Accordingly, restitution was properly ordered.

    Court Procedures for Dealing with Defendant's Rejection of Probation

    State v. Pote, 2003 WI App 31 (filed 30 Jan. 2003) (ordered published 25 Feb. 2003)

    The defendant appealed a judgment sentencing him to prison for failure to pay child support. The circuit court imposed the sentence after it determined that the defendant had rejected the probation that the court had originally ordered. In a decision authored by Judge Deininger, the court of appeals concluded that the trial court did not err in determining that the defendant had rejected probation.

    The original disposition in this case was a four-year term of probation. However, two months into the probationary period, the defendant's probation officer requested the trial court to conduct a "status review" of the defendant's probation because the defendant refused to cooperate with probation intake proceedings and refused to sign his probation rules. The court held a hearing at which it addressed the defendant regarding the issues raised by his probation officer and ultimately concluded that the defendant had rejected probation. The court then sentenced him.

    The issues on appeal included the procedures a court should use in dealing with a defendant who has rejected probation. The defendant contended that his responses to the court's inquiry at the "status review" hearing were ambiguous, and that the court of appeals should require a defendant's rejection of probation to be clear and unequivocal. The defendant argued that the trial court erred because he never explicitly said "I reject probation" or "I refuse to be on probation." The court of appeals declined to require that a rejection of probation contain specific language to be valid. "We conclude that a court's focus should be on whether a defendant communicates the intent to refuse probation rather than on the defendant's choice of words" (¶ 28). The court was satisfied that the record, taken as a whole, demonstrated that the trial court's determination that the defendant rejected his probation was not clearly erroneous.

    The court also considered what procedural safeguards, if any, a circuit judge should employ to ensure that a defendant's decision to reject probation is knowing and voluntary. The defendant urged the appellate court to adopt a requirement for a probation-rejection colloquy similar to those used for acceptance of a plea, waiver of a jury trial, or waiver of counsel.

    The appellate court disagreed. Probation cannot be involuntarily terminated without the holding of a revocation hearing that affords the defendant certain procedural protections. But in this case, the state was not seeking to revoke probation, and thus the issue before the court was not whether the defendant knowingly and voluntarily waived his constitutional right to a due process hearing concerning the grounds for revocation. Rather, the question before the court was whether the defendant rejected probation in favor of having a sentence imposed for the offense of which he was convicted. "We have previously concluded that a 'tardy' rejection of probation is nonetheless a rejection, and does not become a revocation or modification simply because the probation term has commenced" (¶ 30).

    The court rejected the defendant's suggestion that safeguards similar to those in place for waiving a jury trial or representation by counsel are constitutionally required when a defendant declines the opportunity for probation. Further, the court refused to impose a rigid set of procedures as a matter of common law entitlement. The court said that it is sufficient that the record shows that the defendant knew the consequences of refusing probation, a showing typically supplied by the plea colloquy.

    In this case the defendant was informed before entering his no contest plea that he faced a certain maximum sentence if convicted of the offense. The trial court also informed him at the plea hearing that it was not bound by the negotiated recommendation for probation, and that if probation were revoked, he could be required to serve time in jail or prison. The court of appeals concluded that no additional colloquy was required at the time the defendant rejected probation.

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    Insurance

    Subrogation - ERISA

    Palmerton v. Associates' Health & Welfare Plan, 2003 WI App 41 (filed 14 Jan. 2003) (ordered published 25 Feb. 2003)

    The plaintiffs appealed a judgment that awarded an insurance plan more than $35,000 on its subrogation claim for medical expenses incurred for injuries suffered in a car accident. The plan was self-funded for Wal-Mart employees under ERISA.

    The court of appeals, in a decision authored by Chief Judge Cane, affirmed. The court rejected two alternative arguments made by the plaintiffs. First, the plaintiffs argued that since the plan failed to answer the complaint within 45 days as required by Wis. Stat. section 802.06, the court should have dismissed the plan with prejudice. Instead, the trial court dismissed the plan but did not "extinguish" its subrogation rights. Holding that the trial court acted properly, the court of appeals observed that the plaintiffs' complaint stated only a "general request" for damages, not a specific request that the court "extinguish" the plan's subrogation right: "a court may only order the relief requested when granting a default judgment" (¶11).

    Second, the plaintiffs also argued that the plan's subrogation claim was subject to the "made whole and common fund doctrines" (¶12). This claim also failed. The parties specifically "disclaimed" the made whole doctrine because the plan could "recover 100% of the benefits it pays regardless of 'whether the participant has been made whole (i.e., fully compensated for his/her injuries)'" (¶13). Nor did the common fund doctrine apply. Case law provides that an ERISA plan, such as this one, may "disclaim" both the common fund and made-whole doctrines. (¶15) Here, the policy language included such a specific disclaimer.

    Subrogation - ERISA - Attorney Fees

    Traynor v. Thomas & Betts Corp., 2003 WI App 38 (filed 22 Jan. 2003) (ordered published 25 Feb. 2003)

    Traynor was seriously injured in a car accident. His employer's ERISA plan paid nearly $80,000 in medical expenses. Although the ERISA plan claimed that it had "priority rights" to a third party settlement, the trial judge rejected its counterclaims and awarded the plaintiffs more than $56,000 in reasonable expenses and attorney fees.

    The court of appeals, in an opinion written by Judge Peterson, affirmed. First, the record revealed that the plan had stipulated that it was barred from sharing in the plaintiffs' settlement! For this reason alone the plan could not "renew" its summary judgment arguments on appeal (¶18). Second, the trial judge properly found that the plan had acted in bad faith by arguing that 1995 amendments to the plan had been validly adopted.

    Most germane to the attorney fee issue, the plaintiffs' fee request was not insufficiently vague. Since the plaintiffs' lawyers had a contingency agreement with the plaintiffs, for example, one would not expect their records to be as detailed as the records compiled by attorneys working on an hourly fee basis. In short, the attorney fee award was a proper exercise of discretion.

    Finally, the court of appeals found that the plan's appeal was itself frivolous, based on the plan's attempts to argue a position "that is contrary to the facts" and on its "bad faith" reassertion of the summary judgment arguments described above (¶¶28-29).

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    Juvenile Law

    JIPS - Truancy

    State v. Jeremiah C., 2003 WI App 40 (filed 22 Jan. 2003) (ordered published 25 Feb. 2003)

    These consolidated appeals involved two minors who were found to be juveniles in need of protection or services (JIPS) "based solely on habitual truancy, that endured beyond the school term during which each reached eighteen years of age" (¶1). The court of appeals, in an opinion authored by Judge Snyder, reversed the circuit court's imposition of the JIPS order. The plain language of the compulsory school attendance law, Wis. Stat. section 118.15(1)(a), "provides that a juvenile cannot be found habitually truant, and thus in need of protection or services subject to the court's jurisdiction, for failing to attend school after the end of the school term in which the juvenile turns eighteen because the juvenile is not required to attend school after the end of the school term in which he or she turns eighteen. Logically, then, a JIPS order based solely on habitual truancy cannot extend past the time frame in which the juvenile is required to attend school" (¶15).

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    Motor Vehicle Law

    OWI - Implied Consent - Right to Counsel

    State v. Verkler, 2003 WI App 37 (filed 29 Jan. 2003) (ordered published 25 Feb. 2003)

    In State v. Reitter, 227 Wis. 2d 213, 595 N.W.2d 646 (1999), the Wisconsin Supreme Court held that law officers are under no affirmative duty to advise custodial defendants that the right to counsel does not apply to the implied consent setting. However, the Reitter court also appears to have held on due process grounds that if an officer explicitly assures or implicitly suggests that a custodial defendant has a right to counsel, then the officer may not mark down an implied consent refusal if the defendant acts upon that assurance or suggestion.

    In this case, the court of appeals articulated its understanding of the Reitter decision. Writing for the court, Judge Brown concluded that there now exists a narrow exception to the rule announced by the Wisconsin Supreme Court in State v. Neitzel, 95 Wis. 2d 191, 289 N.W.2d 828 (1980). The Neitzel rule is that a defendant's desire to first consult with counsel before deciding whether to submit to a breath test is not a valid reason for the defendant to refuse the test, and an officer is on solid ground in marking a refusal if the custodial defendant relies on this explanation as justification for not immediately agreeing to take the breath test. The narrow exception to Neitzel is the Reitter rule: "If the officer explicitly assures or implicitly suggests that a custodial defendant has a right to consult counsel, that officer may not thereafter pull the rug out from under the defendant if he or she thereafter reasonably relies on this assurance or suggestion" (¶ 8).

    In a footnote the court observed that, while the Reitter court clearly told law enforcement officials that they were under no duty to advise custodial defendants that there is no right to counsel in the implied consent setting, the Reitter court also commented that it was the supreme court's preference that law enforcement officials do so. A sign on the wall to that effect would be one such method for so advising defendants. See ¶ 14 n.3.

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    Prisoner Litigation

    Civil Claims - Prepayment of Fees - Constitutionality of Wis. Stat. section 814.29(1m)

    State ex rel. Lindell v. Litscher, 2003 WI App 36 (filed 30 Jan. 2003) (ordered published 25 Feb. 2003)

    This case concerns Wis. Stat. section 814.29(1m) and the validity of court orders issued thereunder that freeze prisoner trust accounts until the accounts contain sufficient funds to pay filing fees in routine civil cases. The petitioner claimed that the statute violates his rights to court access, religious freedom, freedom of association, the necessary comforts of life, and equal protection.

    In a per curiam decision, the court of appeals concluded that the statute survives constitutional scrutiny. Among other things, the court held that 1) the legislature's decision not to extend to prisoners the privilege of proceeding without the prepayment of fees in routine civil cases does not violate the constitutional right to court access, and a prisoner's ability to proceed by having deductions for the filing fee made from his or her prison account provides him or her with meaningful access to the courts; 2) the defendant's claim that the freezing of his trust fund account prevents him from buying paper, envelopes, postage stamps, deodorant, lip balm, lotion, soap, shampoo, religious publications, and ceremonial supplies, thus burdening his constitutional rights to practice his religion, associate with his family, and enjoy the necessary comforts of life, is flawed in multiple respects; and 3) the freezing of prisoner trust accounts to pay for the costs of civil litigation initiated by prisoners is a rational means of conserving state resources and deterring frivolous litigation, and therefore the statute does not deny prisoners equal protection by discriminating against incarcerated citizens.

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    Property Taxation

    Tax Foreclosure Actions - Remedy when Taxing Entity Fails to Follow Statutory Foreclosure Procedures

    Topps v. Walworth County, 2003 WI App 30 (filed 15 Jan. 2003) (ordered published 25 Feb. 2003)

    The county attempted to foreclose on the plaintiffs' property to recover real estate taxes owed on the property. However, the county allegedly faile d in numerous respects to comply with the foreclosure procedures specified in Wis. Stat. section 75.521. A tax foreclosure sale followed.

    The plaintiffs filed a declaratory judgment action asking the circuit court to declare void the tax foreclosure proceedings by which the county and subsequent purchasers of the property took title, for failure to comply with the statutes as well as the U.S. and Wisconsin constitutions. The circuit court dismissed the action against the subsequent purchasers, concluding that the remedy available to the plaintiffs under section 75.521(14a) is their exclusive remedy in this action and provides only for damages against the county.

    The court of appeals, in a decision authored by Judge Snyder, reversed. The court agreed with the plaintiffs that extant case law makes the remedy for the county's failure to comply with statutory foreclosure requirements a declaration that the tax foreclosure action is void.

    The government's taking of land from an individual for failure to pay property taxes is a very drastic measure and, unless the statutory procedures are strictly complied with, a court has no jurisdiction to render such a foreclosure judgment. Absent strict compliance with the statute, such a governmental taking violates due process. The government's failure to fully comply with the statute renders the foreclosure judgment void.

    In this case, if the allegations in the amended complaint prove to be true, that is, that the county failed to strictly follow the mandates of section 75.521, the only appropriate remedy to avoid any due process violations is to declare the foreclosure action and judgment void.

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    Real Property

    Home Sales - Misrepresentations - Treble Damages - Attorney Fees

    Stathus v. Horst, 2003 WI App 28 (filed 14 Jan. 2003) (ordered published 25 Feb. 2003)

    This is the second appeal arising out of this case. The Stathuses sued the defendants for having intentionally misrepresented the condition of the home that they sold to the Stathuses. At a bench trial the judge found in favor of the plaintiffs and awarded them about $5,000 in compensatory damages and $3,000 in attorney fees. In the first appeal, the court upheld the finding that an intentional misrepresentation had occurred but ordered reconsideration of the damages and attorney fees. On remand, a successor judge trebled the damages to $15,000 and awarded attorney fees of $22,000.

    The court of appeals, in an opinion written by Judge Wedemeyer, affirmed in part and reversed in part. Under Wis. Stat. section 895.80(3)(a), a judge has discretion to treble damages. Although the judge who presided over the original trial had died, the successor judge did his best to "replicate" the trial by reading the record, ordering additional briefing, and granting oral argument. The court of appeals noted that, in essence, the defendants knew their home was not selling because of the water problem and chose not to disclose this defect in a new condition report. In short, the record adequately supported the trebling of damages.

    The court reversed the award of attorney fees. Section 895.80(3) permits plaintiffs to recover litigation costs and attorney fees that are actually and reasonably incurred (¶18). Here the award of attorney fees ($22,000) exceeded the fees actually "incurred" in large part because the plaintiffs had entered into a contingent fee agreement under which counsel recovered a third of the gross judgment (40 percent if there was an appeal). On remand the trial court was directed to consider the reasonableness of the attorney fees that were "actually incurred"(¶24).

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    Torts

    Safety Statutes - Exceptions

    Nunez v. American Family Mut. Ins. Co., 2003 WI App 35 (filed 29 Jan. 2003) (ordered published 25 Feb. 2003)

    A minor was injured when she jumped from the tailgate of a pickup truck in the destaging area of a parade sanctioned by a municipality. She and her parents sued the truck's driver. A jury found that the driver was not negligent. On appeal, the plaintiffs contended that the driver was negligent as a matter of law for transporting children under the age of 16 years on the tailgate of his pickup truck, in violation of Wis. Stat. section 346.922.

    The court of appeals, in an opinion authored by Judge Nettesheim, affirmed. The court agreed with the plaintiffs that section 346.922 is a safety statute. The minor certainly was a member of the class protected by the statute, and the legislature obviously intended to impose civil liability on those who violate it. In addition, section 346.922 "is intended to prevent any and all harms that could result from a child being transported in the open cargo area of a vehicle including those resulting from a child's immature decision to jump, from the cargo area of a moving vehicle (¶ 21).

    However, although section 346.922 is a safety statute, the plaintiff's tumble in the "destaging" area fell within the "parade exception" set forth in subsection (2)(b). The only reasonable interpretation of the exception "is to include in the definition of 'parade' both the staging and destaging areas'" (¶26).

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