Vol. 76, No. 6, June
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
Time Limits for Commencing Appeals to the Court of Appeals - Pro Se
Prisoners - "Tolling Rule"
State ex rel. Kelley v.
State, 2003 WI App 81 (filed 4 March 2003) (ordered published
30 April 2003)
In State ex rel. Nichols v. Litscher, 2001 WI 119, the
Wisconsin Supreme Court held that the time period for filing a petition
in the supreme court for review of a court of appeals decision is tolled
on the date that a pro se prisoner delivers a correctly-addressed
petition to the proper prison authorities for mailing. The question
before the court of appeals in this case was whether the
Nichols tolling rule should also be applied to the time
limitation for filing a notice of appeal in the court of appeals from a
decision of the circuit court.
In a per curiam decision, the court of appeals answered in the
affirmative, holding that logic suggests that the prison mailbox tolling
rule should apply to the filing of a notice of appeal. Like a petition
for review to the supreme court, the notice of appeal is a document that
must be timely filed in order to grant the court of appeals jurisdiction
over the case. A prisoner seeking to file a notice of appeal faces the
same restrictions on method of filing as does a prisoner filing a
petition for review. Application of the prison mail box tolling rule is
conditioned on the prisoner meeting certain conditions, including
addressing the petition properly and otherwise complying with filing
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County Jail Time as a Condition of Probation - Power of Sheriff to
Release Inmates to Home Monitoring
State v. Schell,
2003 WI App 78 (filed 11 March 2003) (ordered published 30 April
The defendant was convicted of three counts of encouraging a
probation violation and one count of negligently allowing escape. The
court placed her on probation with a condition that she spend 100 days
in the county jail. After the defendant began her time in jail, the
sheriff determined that she was appropriate for home monitoring and
released her. When the circuit court learned of the release, it
conducted a hearing and amended the judgment to preclude placement on
The sole issue on appeal was whether a circuit court possesses the
power to prohibit a sheriff from ordering home monitoring for a
defendant ordered to serve jail time as a probation condition. In a
decision authored by Chief Judge Cane, the court of appeals concluded
that the circuit court lacked authority to preclude the defendant's
placement on home monitoring. It held that the plain language of Wis.
Stat section 302.425 allows a sheriff to place persons on home
monitoring when they are given jail time as a probation condition. The
court also considered whether the amended judgment violated the
separation of powers doctrine and concluded that, "by precluding the
sheriff from releasing the defendant on home monitoring, the trial court
substantially interfered with the sheriff's power" (¶ 16).
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Newly Discovered Evidence - Shiffra
State v. Robertson,
2003 WI App 84 (filed 26 March 2003) (ordered published 30 April
A jury convicted the defendant of sexually assaulting an acquaintance
he met at a party. The defendant claimed that the alleged victim
consented to all sexual acts; the victim testified that she refused and
resisted later sexual acts. Both sides argued that credibility was the
key issue at trial. Following trial, the state submitted documents
relating to restitution, which included a letter by the victim's
treating psychiatrist that described the victim's treatment for
"clinical depression with psychotic features" about the time the "rape"
occurred. The trial court denied the defendant's motion for
postconviction discovery of the victim's psychiatric records.
The court of appeals reversed. The opinion, written by Judge Brown,
sets forth the procedures governing the postconviction production of a
victim's mental health records. "A defendant requesting confidential
records during postconviction discovery should be required to meet the
preliminary Shiffra-Green burden [i.e., the defendant must
demonstrate a reasonable likelihood that the records contain relevant
information that is necessary to a determination of guilt or innocence].
As with pretrial requests for confidential records, applying the
Shiffra-Green test to the posttrial setting strikes the
appropriate balance between the interests of the defendant and the
State. It affords the defendant the opportunity to have a judge, an
independent overseer, review the records while still protecting the
privacy of the alleged victim. Then, if the defendant has shown an
entitlement to an in camera review based upon the first four factors of
the newly discovered evidence test, the trial court should apply the
[State v. O'Brien, 223 Wis.2d 303, 588 N.W.3d 8 (1999)]
'consequential evidence' test to determine whether the material it
reviews during its in camera inspection should be disclosed to the
The court concluded that all elements of the commingled newly
discovered evidence test, the Shiffra-Green test, and the
O'Brien test had been met.
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Impeachment - Prior Convictions - Waiver
State v. Gary M.B.,
2003 WI App 72 (filed 6 March 2003) (ordered published 30 April
A jury convicted the defendant of sexually assaulting a child. The
trial judge ruled that all five of the defendant's prior criminal
convictions were admissible to impeach him under Wis. Stat. section
906.09. The convictions occurred between 1973 and 1991, for offenses
including cashing bad checks, assault, and domestic violence.
The court of appeals, in an opinion written by Judge Deininger, held
that the trial judge erred by admitting all five convictions but that
the error was harmless. First, the court held that the defendant had not
waived the issue by "preemptively testifying to them on direct
examination" (¶10). In reaching this determination, the court
discussed Wisconsin case law that departs from federal precedent, which
reached the opposite conclusion. In short, Wisconsin defendants may
continue the practice of preemptive disclosure of prior convictions on
direct examination, which forecloses the prosecutor from revisiting such
evidence, without fear of waiving objections to admissibility of the
Second, the trial court abused its discretion by failing to weigh the
probative value of three of the convictions against the danger of unfair
prejudice (the defendant stipulated that two convictions were
admissible). The trial judge relied on an erroneous "presumption" that
prior convictions are admissible. To the contrary, section 906.09
requires that the probative value of evidence be weighed against unfair
prejudice and other factors. Finally, the court closely scrutinized the
record and determined that the error was harmless beyond a reasonable
Judge Dykman dissented from the conclusion that the error was
harmless, particularly the majority's implication "that improper
admission of the numbers of prior convictions is ipso facto
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Termination of Parental Rights - Incestuous Relationship - Parental
Monroe County Dep't of Human
Servs. v. Kelli B., 2003 WI App 88 (filed 27 March 2003)
(ordered published 30 April 2003)
Kelli is the mother of three children, and it is undisputed that
Kelli's father is the father of her three children. The Monroe County
Department of Human Services petitioned to terminate the parental rights
of both the mother and her father to their children. The father agreed
to voluntarily terminate his parental rights.
The case to terminate the mother's parental rights was tried to a
jury on a single statutory ground, incestuous parenthood. See
Wis. Stat. § 48.415(7). After the jury found that the mother and
the children's father were related by blood in a degree of kinship
closer than second cousins, the case proceeded to a disposition hearing,
at which the circuit court determined that it was in the best interests
of all three children to terminate the mother's parental rights.
On appeal the mother argued that the ground of incestuous parenthood
for terminating parental rights was unconstitutional as applied to her,
because she was the victim of an incestuous relationship begun while she
was still a minor. In a decision authored by Judge Vergeront, the court
of appeals concluded that the use of section 48.415(7) in this situation
violated the mother's right to substantive due process.
The court concluded that the mother has a fundamental liberty
interest in parenting her children. The court could find no case that
would support the proposition that a parent in her situation - that is,
a parent who was a minor at the time her own parent began an incestuous
relationship with her and who has a substantial relationship with her
children - does not have a fundamental interest in parenting the
children born of that relationship.
The court further concluded that the fact of the incestuous
parenthood of the children in itself does not demonstrate that the
mother is an unfit parent. Said the court, "the minor child in the
incestuous relationship is a victim of his or her parent's wrongful and
criminal behavior. Being victimized by one's parent does not warrant the
conclusion that the child is an unfit parent of the offspring of the
incestuous relationship" (¶17). Nor would the court conclude that
the mother's failure to end the relationship once she turned 18 made her
an unfit parent.
Lastly, the court held that, even though a trial judge has discretion
not to terminate parental rights if that course of action is in the
child's best interest, the existence of this discretion is not a
substitute for the constitutional requirement that the state must first
prove the parent unfit.
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Common Law Fraudulent Concealment - Wisconsin Deceptive Trade
Practices Act - Element of Damages
Harley-Davidson Inc., 2003 WI App 75 (filed 4 March 2003)
(ordered published 30 April 2003)
At the heart of this appeal are claims made by the plaintiff against
the defendant for common law fraudulent concealment and violations of
the Wisconsin Deceptive Trade Practices Act (DTPA). The plaintiff
alleged that the defendant manufactured certain motorcycles equipped
with engines that were defectively designed and potentially dangerous,
due to what the plaintiff claimed was a known propensity for premature
cam failure, which causes sudden and total engine failure. The critical
issue was whether the plaintiff had to wait for actual motorcycle
failure to occur before bringing these claims.
In a decision authored by Judge Wedemeyer, the court of appeals
concluded that Wisconsin law does not require the plaintiff to wait for
his engine to fail before he can state a fraudulent concealment claim.
One of the elements of a common law fraudulent concealment claim is that
the plaintiff suffer benefit of the bargain damages. It is a fundamental
principle of Wisconsin law that actual damage is harm that has already
occurred or is reasonably certain to occur in the future.
Under the benefit of the bargain rule, the measure of the purchaser's
damages is typically stated as the difference between the value of the
property as represented and its actual value as purchased.
Alternatively, an appropriate measure is the reasonable cost of placing
the property received in the condition in which it was represented to
be. In this case, the court found that the plaintiff properly alleged
damages under both measures, and the court held that the circuit court
determination that the plaintiff must await product failure before he
can state a claim of fraud conflicts with precedent.
The court also agreed with the plaintiff that he need not wait until
the motorcycle fails in order to state a claim under the DTPA. "No
Wisconsin court has ever held that DTPA plaintiffs must suffer any type
of damage other than the benefit of the bargain losses [the plaintiff]
seeks here" (¶ 23). Because the plaintiff pleaded all elements of a
DTPA claim in his complaint and because engine failure was not needed to
assert a DTPA claim, the court concluded that the complaint stated an
appropriate claim for a violation of the DTPA.
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Stacking - UIM Coverage
Kendziora v. Church Mut.
Ins. Co., 2003 WI App 83 (filed 18 March 2003) (ordered
published 30 April 2003)
Amanda Kendziora was gravely injured when she was struck by a car in
a crosswalk while walking with her mother. Amanda's damages exceeded the
liability policy limits of the driver who struck her. Her parents thus
looked to the underinsured motorist (UIM) coverage contained in two
policies on two vehicles they owned. The insurer moved for a declaratory
judgment and summary judgment finding that its UIM coverage did not
apply. The trial court ruled in favor of the insurer, finding that the
parents' vehicles did not fit the policies' definition of "underinsured
The court of appeals, in an opinion written by Judge Wedemeyer,
affirmed. This case presented a "factual variation from other UIM
ambiguity cases considered by this court. Under the facts here, we
decide for the first time whether the underinsured motorist provision in
the insured's policies are ambiguous when the insured is a pedestrian,
and neither of the insured's vehicles is involved in the accident"
Closely scrutinizing the policies' language, the court found that "it
leaves no room for stacking UIM limits simply because [the parents] had
more than one policy or because the UIM premiums were totaled into a
single amount" (¶25). The court also rejected the assertion that
since "stacking" was not expressly prohibited, it was allowed
(¶26). Nor was the court persuaded that the declarations page and
various schedules created ambiguity. Finally, the policies' "two or more
auto policies" provision was "not qualified in any manner and quite
clearly applie[d] to the entire policy" (¶37) and did not, as a
result, render coverage "illusory" (¶39).
Reducing Clauses - UIM - Ambiguity
Gohde v. MSI Ins.
Co., 2003 WI App 69 (filed 4 March 2003) (ordered published 30
The court of appeals here considered whether a reducing clause
applicable to underinsured motorist (UIM) coverage rendered a policy
ambiguous. The matter was before the court of appeals on remand from the
supreme court, which summarily reversed the court of appeals' earlier
decision and ordered rebriefing in light of Badger Mutual Insurance
Co. v. Schmitz, 2002 WI 98.
The court of appeals, in an opinion written by Judge Cane, held that
the reducing clause in the policy was ambiguous under Schmitz
and therefore unenforceable (¶2). Neither the policy's declaration
page nor the index mentioned that the UIM coverage was subject to a
reducing clause (¶14). Schmitz (and other case law) make
it clear that this "lack of reference" was a "factor" to consider
"While we agree with [the insurer] it would be impractical to refer
to every limit of liability in the declarations, a reducing clause is
not a typical limit of liability. In the UIM context, reducing clauses
practically guarantee the stated limits will never be fully paid. As a
result, Wisconsin courts generally voided reducing clauses as providing
illusory coverage and being against public policy before the enactment
of Wis. Stat. § 632.32(5)(i). After the legislature authorized
reducing clauses, the supreme court still required they be 'crystal
clear' within the context of the entire policy. Based on
Schmitz and Dowhower II, we determine it is relevant
whether the declarations mention the reducing clause" (¶17,
citation omitted). Although this policy lacked the "complexity" featured
in other cases, its "declarations and the limits of liabilities sections
lead the insured to believe the limits are obtainable when, in reality,
the reducing clause guarantees they will rarely, if ever, be paid"
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Liability of Manufacturer for Component Parts Not Covered by
Manufacturer's Express Warranty
Schonscheck v. Paccar
Inc., 2003 WI App 79 (filed 4 March 2003) (ordered published 30
The plaintiff, a self-employed truck driver, purchased a new Kenworth
truck. He received a limited motor vehicle warranty from Kenworth. The
truck's engine was protected by a separate warranty issued by Cummins
Engine Co. Problems arose immediately with the vehicle, and ultimately
the plaintiff sued Kenworth, alleging several theories of liability,
including a claim under Wisconsin's lemon law. All claims were
subsequently dismissed except for the lemon law claim, upon which the
plaintiff prevailed before a jury.
Among the issues on appeal was whether the lemon law makes
manufacturers liable only for conditions that do not conform to an
express warranty. Kenworth argued that the unrefuted evidence proved
that the nonconformity in the plaintiff's truck resulted from the
engine. It was also undisputed that the engine was not covered in
Kenworth's express warranty. Therefore, Kenworth argued, the lemon law
did not make it liable to the plaintiff.
In a decision authored by Judge Peterson, the court of appeals
concluded that the lemon law unambiguously places liability for vehicle
nonconfor-mities on the manufacturer, even for component parts.
See Wis. Stat. § 218.0171(1)(f). The court also rejected
Kenworth's argument that the lemon law limits responsibility to
conditions that do not conform to an express warranty. It concluded that
if the legislature had intended to limit the scope of the statute to
manufacturer's express warranties, it could have done so, but
it did not.
The court further observed that the lemon law prevents waiver of
consumer rights and protections. It was enacted to provide customers
with remedies beyond what have been characterized as the "inadequate,
uncertain and expensive remedies" of the Uniform Commercial Code and the
Magnuson-Moss Warranty Act. "When a manufacturer excludes components
from its warranty, it is effectively compelling the consumer to waive
the consumer's rights under the lemon law for nonconformities to these
parts. A manufacturer cannot simply exclude all major parts from its
warranty to avoid lemon law liability. . . . We therefore conclude that
the language of the lemon law unambiguously makes Kenworth liable for
nonconformities to the Cummins engine even though the engine is not
covered in Kenworth's express warranty" (¶ 17).
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Lawful Heirs - Paternity - Presumptions - Statute of Limitation -
Removal of Personal Representative
Jaskolski, 2003 WI App 70 (filed 4 March 2003) (ordered
published 30 April 2003)
Frank B. Thompson (FBT) died intestate in 1999, leaving assets worth
nearly $1 million but no known heirs. Putative relatives of FBT brought
this action, alleging that FBT was the son of their ancestor Frank J.
Thompson (FJT), and thus that they were the lawful heirs of FBT. The
probate court held a two-day evidentiary hearing and reached the
following conclusions: "(1) the evidence rebutted the
birth-certificate-based presumption that FBT was a marital child of FJT
[citation omitted]; (2) paternity proceedings to establish whether FBT
was a nonmarital child of FJT were barred by the statute of limitations;
and (3) the actions of the personal representative of the estate were
reasonable and, therefore, did not require her removal" (¶1).
The court of appeals, in an opinion written by Judge Schudson,
affirmed in part and reversed in part. The circuit court's finding that
the evidence rebutted the "birth-certificate-based presumption" was not
clearly erroneous. Wis. Stat. section 891.09 provides that a birth
certificate is "prima facie" evidence of any fact. Under Wis. Stat.
section 903.01, the personal representative had the burden of
disproving the presumed fact that FBT was the marital child of
FJT as indicated on the birth certificate. The circuit court drew
reasonable inferences, none clearly erroneous, from conflicting evidence
when trying to assess what had occurred in 1908, the year of FBT's birth
(¶20). The circuit court erred, however, in ruling that the statute
of limitation precluded further probate proceedings regarding FBT's
paternity (¶23). More precisely, Wis. Stat. section 893.88 limits
only "actions" for the establishment of paternity, not motions
for "the purpose of determining paternity in a probate proceeding"
The circuit court properly refused to remove the personal
representative who had fought this "costly battle" against the putative
relatives. Nothing demonstrated that her decisions "derived from fraud,
bad faith, or conflict of interest" or that she was incompetent or
incapable of discharging her duties (¶36). Although the personal
representative had "misinterpreted law in several significant ways," the
court confidently predicted that with the "legal guidance gained through
this appeal" she would "fulfill her duties" (¶37).
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Condominium Bylaws - Foreclosures - Title Transfer
Bankers Trust Co. v.
Bregant, 2003 WI App 86 (filed 11 March 2003) (ordered
published 30 April 2003)
In 1997 Bregant bought a condominium at Woodlands and executed a
mortgage in favor of Bankers Trust for the property. In 2001 Woodlands
amended its bylaws to require that its condominiums be occupied by their
owners. One month later Bankers Trust filed a mortgage foreclosure
action against Bregant; Woodlands was later joined as a defendant
because of its lien and interest in the unit. At a sheriff's sale in
2002, Bankers Trust was outbid for the unit by $100. Woodlands objected
to the winning bid, however, because the bidder would not reside in the
unit and therefore would violate the bylaws. The trial court
nevertheless confirmed the sale.
Addressing this issue of first impression, the court of appeals, in
an opinion written by Judge Wedemeyer, affirmed, "[b]ecause Wis. Stat.
§ 703.10(6) (1999-2000) prohibits condominium bylaws from affecting
the transfer of title to a condominium unit" (¶1). Woodlands, said
the court, was attempting to use its bylaw to block the transfer of
title, thereby rendering title to the unit unmarketable and "otherwise
affected" as proscribed by the statute. "On the one hand, Woodlands
argues that the transfer of title by sheriff's sale to Green [the
winning bidder] cannot occur because it violates a bylaw prohibition and
therefore is contrary to law. Yet, on the other hand, it argues that the
bylaw restriction does not render the title to the unit unmarketable"
(¶18). The court found Woodlands' position in "direct
contravention" to the statute: "To defeat a transfer to title by
sheriff's sale is tantamount to rendering the title unmarketable or, at
the very least, to adversely affecting its marketability"
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Conflicts of Law - Undue Influence - Improper Execution -
Glaeske v. Shaw,
2003 WI App 71 (filed 6 Feb. 2003) (ordered published 30 April 2003)
The trustee of the Arthur Shaw Irrevocable Trust filed this
declaratory judgment action seeking a determination of the trust's
validity. Shaw had one son, with whom he had a strained relationship.
The trust named Arthur's nephew as the primary beneficiary. The circuit
court rejected the son's claims that the nephew exercised improper
influence and that the trust was invalid because it was improperly
The court of appeals, in an opinion written by Judge Deininger,
affirmed. First, the court determined that Wisconsin law governed this
action even though Shaw resided in Florida when the trust was executed.
The trust document itself specified the application of Wisconsin law,
named Wisconsin residents as the trustee and primary beneficiary, and
identified Wisconsin as the place of its drafting and execution
(¶24). Since Wisconsin law does not require that two
witnesses sign in the presence of each other and the settlor at the time
of execution, the trust was properly executed, even though Florida law
Second, the summary judgment record did not raise a disputed issue of
fact relating to Shaw's susceptibility to influence. Said differently,
the son's failure to raise a disputed issue of fact as to the elements
of an undue influence claim justified the court's decision to grant
summary judgment in favor of the trust (¶31). Nor did the son meet
his burden with respect to an alternative standard that applies when
there is a "confidential or fiduciary relationship" between the
beneficiary and the settlor and "suspicious circumstances" surrounded
the trust's creation (¶27).
The court also addressed several issues relating to sanctions. The
court of appeals held that the circuit court properly struck the son's
expert witnesses because of the son's failure ("by any measure") to
comply with a scheduling order (¶39). The court of appeals remanded
the case for a determination of whether any of the son's claims are
frivolous. Although the circuit judge stated that "it appears to me that
there is going to be some imposition of sanctions," none were formally
entered. The court rejected the trustee's contention that the appeal
itself was frivolous.
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