Vol. 77, No. 11, November
Court of Appeals Digest
This column summarizes selected published opinions of the Wisconsin
Appeals. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite
and questions about the digests. They can be reached at the Marquette
Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414)
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Termination - Tenure - Contested Cases - Due Process
Marder v. Board of
2004 WI App 177 (filed 10 Aug. 2004) (ordered published 28 Sept. 2004)
Marder, a tenured professor, was terminated by the University of
Board of Regents (board) based on charges of unprofessional conduct.
court remanded the matter to the board for further action, and both
and the board appealed.
The court of appeals, in an opinion written by Judge Peterson,
remanded. Marder's first contention alleged that several improper ex
communications between the board and other persons had occurred. The
rejected this claim. The court held that there was nothing improper
board's contacts with the Office of the General Counsel. The board
advice on procedural matters and there was "no indication that
of the General Counsel so influenced the Board that the Board's
was `psychologically wedded' to the Chancellor's position"
Marder also alleged that one regent, Marcovich, had improper
the chancellor during a plane ride in Marcovich's private plane.
has merely speculated that because the Chancellor and Regent traveled
they must have discussed the matter. However, the presumption is that
and Regent took their responsibilities seriously, understood that
the matter would be improper and therefore avoided any mention of it.
has not made a strong showing that would rebut the presumption that
and Marcovich acted in any other way than with honesty and
integrity" (¶ 19).
The court of appeals agreed with the board that tenure termination
are not "contested" cases within the meaning of Wis. Stat.
227. Although dismissal decisions are reviewable under chapter 227,
of the hearing itself is governed by specific administrative
by statute, not the contested case provisions of chapter 227
(see ¶¶ 21-25).
The board, however, violated the regulations when it met with the
outside of Marder's presence. The applicable regulation did not
state that a faculty member must be present at the consultation
Board and the Chancellor" (¶ 28). Yet, when the regulation
in light of other provisions, the court found it clear that
the right to hear and refute any allegations the Chancellor raised
consultation" (¶ 29). The court also determined that
process right was violated if new and material information was
this meeting (¶ 36).
The final issue addressed the appropriate remedy. The court rejected
contention that the board was so tainted that the only remedy was to
its decision terminating Marder. The court of appeals said that the
court was in the best position to gauge whether any new and material
was discussed and, if so, the proper remedy.
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Felony Murder - Offense is Stand-alone Crime - Not a Penalty
State v. Mason,
App 176 (filed 19 Aug. 2004) (ordered published 28 Sept. 2004)
This case arose under Wisconsin's original truth-in-sentencing laws,
the court's conclusions also are applicable to the current
regime. The question before the court was whether the felony murder
(Wis. Stat. § 940.03) creates a penalty enhancer that is added to
underlying crimes listed in that statute or instead describes a
The issue is significant because it affects the calculation of the
term of initial confinement to which a defendant convicted of felony
is exposed. In a decision authored by Judge Lundsten, the court of
concluded that felony murder is a stand-alone unclassified crime. The
initial term of confinement for an unclassified crime is determined by
a multiplier of 75 percent to the maximum term of imprisonment. The
term of imprisonment for felony murder is calculated by adding 15
the maximum term of imprisonment for the underlying felony.
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Withdrawal of Guilty Plea - Misinformation Provided to Defendant
Collateral Consequences of Plea
State v. Brown,
179 (filed 31 Aug. 2004) (ordered published 28 Sept. 2004)
The defendant pleaded no contest to six criminal charges, including
enticement, causing a child to view sexual activity, exposing genitals
child, and intimidating a victim. The parties specifically intended
agreement to include only charges that 1) would not require the
register as a sex offender and 2) were not sexual predator offenses
subject the defendant to post- incarceration commitment under Wis.
After the defendant was sentenced, he learned that the plea
not accomplish what the parties had intended. In fact, two of the
him to register as a sex offender, and a third was a sexual predator
He therefore moved to withdraw his no contest pleas, arguing that
was actively misinformed of the consequences of his pleas and the
went to the heart of the plea agreement, the pleas were not knowingly
entered. The circuit court denied the motion.
In a decision authored by Judge Peterson, the court of appeals
Reviewing applicable precedent, the appellate court observed that if
court does not disclose a direct consequence of a plea, a defendant
the plea as a matter of right. However, if the court does not disclose
consequence of a plea (that is, a consequence that does not
from the conviction and may depend on the defendant's subsequent
a defendant may not withdraw the plea on the basis of that lack of
In this case the defendant sought to withdraw his pleas not because he
information about their consequences (which he acknowledged were
but rather because he was misinformed about those consequences by both
attorney and the prosecutor with the acquiescence of the judge.
The appellate court concluded that the defendant's misunderstanding
consequences of his pleas undermined the knowing and voluntary nature
pleas. The plea agreement was purposefully crafted to only include
charges that would not require the defendant to register as a sex
or be subject to post-incarceration chapter 980 commitment. He entered
pleas believing that he would not be subject to those collateral
His belief, however, was not the product of his own inaccurate
but was based on affirmative, incorrect statements made on the record
attorney and the prosecutor. The trial court did not correct the
Under these circumstances, the pleas were not, as a matter of law,
and voluntarily entered, and the defendant must therefore be permitted
them. On remand, the case shall resume with a new arraignment on all
original charges in the information.
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Sentencing - Agreement to Reopen and Amend Judgment if Defendant
State v. Dawson,
App 173 (filed 19 Aug. 2004) (ordered published 28 Sept. 2004)
In this case the parties entered into a plea agreement that provided
the prosecutor would recommend five years of probation and that, if
successfully completed probation, the state would move to reopen the
amend the charge to a lesser offense. Pursuant to the agreement, the
entered a no contest plea and was placed on probation. At the time of
the court did not order the reopen-and-amend provision to be
the judgment of conviction, but neither did it say anything to
it had rejected that part of the plea agreement. On the contrary, the
comments at sentencing conveyed that it was receptive to a motion to
and amend (see ¶ 15 n.2).
The defendant subsequently moved to withdraw his no contest plea,
that the reopen-and-amend provision of the plea agreement is legally
and that his plea was thus rendered unknowing and involuntary. The
court denied the motion.
In a decision authored by Judge Deininger, the court of appeals
In reaching this conclusion, the court relied on State v.
Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992). "We concluded in
there was simply no statutory authority for a court to reopen a
a defendant of a felony and amend it to a lesser charge" (¶
point in Hayes was that, once a charge becomes a conviction,
may not amend it, because amending the charge would also
require amending the judgment of conviction to reflect the reduced
which no statute authorizes either a prosecutor or trial court to
do" (¶ 18).
The court concluded that this is true regardless of whether a motion
to reopen and amend is filed before or after a probation term has
In this case the defendant established that his plea was not
voluntarily made because it was induced by the promise of a future
that could never be conferred. Thus, the appellate court concluded
order to avoid a manifest injustice, the defendant must be permitted
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Elderly Defendant - Age as a Factor in Sentencing
State v. Stenzel,
App 181 (filed 11 Aug. 2004) (ordered published 28 Sept. 2004)
The defendant was convicted on two counts of homicide by intoxicated
of a vehicle and one count of injury by intoxicated use of a vehicle
a 14-year sentence. He challenged the sentence on the ground that the
court erroneously exercised its sentencing discretion by placing too
on the gravity of the offense and ignoring the many positive
the defendant's 78 years as a productive member of society. The
denied his motion seeking modification of sentence.
In a decision authored by Judge Anderson, the court of appeals
that the circuit court properly exercised its discretion when
defendant. The court of appeals began its analysis by looking to the
case of State v. Gallion, 2004 WI 42, wherein the Wisconsin
Court reaffirmed a core sentencing concept: to properly exercise its
a circuit court must provide a rational and explainable basis for its
"[The trial court] must specify the objectives of the sentence
record, which include, but are not limited to, the protection of the
punishment of the defendant, rehabilitation of the defendant, and
of others. It must identify the general objectives of greatest
which may vary from case to case. The circuit court must also describe
facts relevant to the sentencing objectives and explain, in light of
facts, why the particular component parts of the sentence imposed
specified objectives. Similarly, it must identify the factors that
in arriving at the sentence and indicate how those factors fit the
and influence the sentencing decision" (¶ 8) (citations
The court of appeals indicated that, while Gallion
jurisprudence, "it did not make any momentous changes"
The weight to be given each factor, in particular, is still a
within the wide discretion of the sentencing judge.
In this case the defendant criticized the circuit judge for placing
weight on the gravity of the offense and ignoring significant positive
weighing in the defendant's favor. He argued that the court
its discretion in not giving sufficient weight to his age as a
and in not finding his life expectancy to be relevant.
The appellate court agreed that age is a factor that the circuit
consider as an aggravating or mitigating factor when imposing sentence
that in this case the circuit court did consider the defendant's age.
the circuit court did not place any weight on the defendant's age
concluded that the gravity of the offense was enormous. The court
at the post-conviction hearing that at sentencing it was required to
the defendant's exemplary life against the gravity of the offense. The
also stated that because efforts at curbing drunk driving had not
it was necessary to send a message to the public that deaths caused by
drivers would be severely punished.
The appellate court concluded that the trial judge appropriately
discretion when he did not give the defendant's age the overriding and
significance that the defendant would have preferred. The circuit
the discretion to discuss only those factors it believes are relevant,
the weight that is attached to a relevant factor in sentencing is
wide discretion of the sentencing court. In this case the judge
linked the sentence imposed to the gravity of the offense and the need
a message to the public. It was permissible for the court to impose a
sentence to emphasize society's concern with the gravity of the
circuit court also appropriately considered the deterrence effect of
With regard to the defendant's life expectancy, the appellate court
with other jurisdictions that [this factor], coupled with a lengthy
while perhaps guaranteeing that the defendant will spend the balance
or her life in prison, does not have to be taken into consideration by
circuit court. If the circuit court chooses to consider a defendant's
expectancy, then it must explain, on the record, how [this factor]
the sentencing objectives" (¶ 20).
Lastly, the appellate court concluded that the sentence imposed was
excessive as to be unduly harsh and unconscionable.
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Divorce Settlement - Impasse-breaking Authority Granted to Third
Choice of Child's School
WI App 170 (filed 19 Aug. 2004) (ordered published 28 Sept. 2004)
The issue in this case concerned the parents' agreement,
the divorce judgment, on the impasse-breaking authority for the choice
child's school. The provision stated that "the guardian ad litem
family court counselor shall have the right to break any impasse
parties as to where [the child] should attend school" (¶ 1).
the guardian ad litem (GAL) and the family court counselor were called
to make a choice regarding the child's school and did make such a
the mother appealed to the circuit court because she disagreed with
She sought a court order regarding choice of school. The circuit court
the motion, observing that there was no provision for court review of
decision of the GAL and the family court counselor.
In a decision authored by Judge Vergeront, the court of appeals
It concluded that the impasse-breaking agreement approved by the court
incorporated into the divorce judgment is not against public policy
consistent with public policy favoring settlement in divorce cases.
does not limit the statutory authority of the court to review the
decision: like a decision made by the parent given sole power or
authority, there is no review by the court of the particular decision
but the other parent may move to modify the grant of power under Wis.
sec. 767.325 upon the requisite showing" (¶ 22). Said the
agree with the circuit court that the provision does not contemplate
review of the impasse-breaking decision and we conclude it does not
applicable statutes or public policy" (¶ 1).
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Reducing Clauses - Anti-stacking
Remiszewski v. American
Co., 2004 WI App
(filed 4 Aug. 2004) (ordered published 28 Sept. 2004)
This appeal involves an insurance dispute arising out of an
that caused personal injury. The plaintiff was an insured for purposes
motorist (UIM) coverage in three policies issued to her father. On
judgment, the circuit court ruled that the reducing clauses in all
were unenforceable, thereby prompting an appeal by the insurer. The
ruled, however, that the policies' anti-stacking provisions were
provoking the plaintiff to appeal.
The court of appeals, in a decision authored by Judge Nettesheim,
in part and reversed in part. The court reversed the circuit court's
that the reducing clauses were unenforceable. The reducing clauses
stated that "`[t]he
limits of liability of this coverage will be reduced by: ... [a]
or amount payable by or on behalf of any person or organization which
legally liable, or under any collectible auto liability insurance, for
caused by an accident with an underinsured motor vehicle'"
The plaintiff contended that the phrase "amount payable"
to illusory coverage for purposes of Wis. Stat. section 632.32(5)(i),
insurer argued that it invoked the "payment made" provision
the plaintiff's demand for full coverage. The court agreed with the
fact that an insurance policy may include arguably ambiguous language
which the insurer has not relied is of no consequence and will not
right of an insurer to reduce its limits of liability under a valid
provision" (¶ 17).
In sum, the applicable reducing clause contained in the UIM
clear and unambiguous. "[N]either the structure and organization
Family's policy, nor any provisions therein, renders the reducing
ambiguous" (¶ 24).
The court of appeals upheld the circuit court's ruling that the
provisions were valid. Although the anti-stacking clause did not
complete text of section 632.32(5)(f), it nonetheless "clearly
that regardless of the number of policies held by a claimant, American
coverage will not exceed the UIM maximums" (¶ 27).
The court also rejected the argument that the anti-stacking
with an allegedly "pro-stacking" clause in the UIM
that the anti-stacking provision should have been included in the
Insurance" section of the policy. "Given the structure of
Family policies and the language of the two provisions, which state
purposes, we conclude that a reasonable person reading the
and the other insurance clause would understand that the anti-stacking
is a limit of liability while the `Other Insurance' clause pertains to
manner in which American Family will address the existence of other
coverage. A reasonable insured would not be misled or receive a false
by the location or language of the anti-stacking provision"
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Real Estate Law
Lis Pendens - Discharge - Appeal
Zweber v. Melar
WI App 185 (filed 3 Aug. 2004) (ordered published 28 Sept. 2004)
Zweber sued Melar Ltd., seeking specific performance of a real
among other claims. Melar counterclaimed for slander of title. The
court dismissed Zweber's complaint on summary judgment but refused to
Melar's counterclaim. Later, however, the circuit court granted an
the lis pendens even though the counterclaim remained unresolved.
The court of appeals, in an opinion written by Judge Hoover,
a "lis pendens under Wis. Stat. § 840.10(1) must be
long as there are pending proceedings in an action, including
appellate proceedings" (¶ 15).
A lis pendens serves "as notice of pending litigation that may
real estate" (¶ 6). It furthers two objectives. First, a lis
preserves the status quo of the property pending the end of
it provides notice to third parties.
The court held that "based on the language of Wis. Stat. §
and the objectives of both common law and statutory lis pendens, a lis
may not be discharged until all opportunities for appeal expire or are
except as provided otherwise by statute" (¶ 10).
Stat. § 840.10(1) provides that subsequent purchasers `shall be
by the proceedings in the action' to the same extent as the actual
In any given action, the parties would naturally be bound by the
appellate proceedings. Since purchasers are to be bound as if they
they too must be bound by appellate proceedings. Thus, discharging the
pendens before the expiration or exhaustion of the appellate process
both the notice and preservation objectives" (¶ 11).
Moreover, "the discharge of the lis pendens under Wis. Stat.
is contemplated as the final, closing step in litigation the same way
the discharge of an attachment or a satisfaction of judgment concludes
After all the appeals are exhausted, either the plaintiff will have
and the defendant will have to comply with the court's order regarding
of property or the defendant will prevail and the plaintiff's claim
the property will be extinguished. In either case, once the property
according to the judicial order, circuit court personnel will be able
the lis pendens. Even if the statute did not provide any manner for
the lis pendens itself would naturally cease to operate once the
process has expired or been exhausted because there will no longer be
litigation" (¶ 14).
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"Takings" - Fair Value - Other Sales
Pinczkowski v. Milwaukee
2004 WI App 171 (filed 31 Aug. 2004) (ordered published 28 Sept. 2004)
Pursuant to its "master plan" for expansion, Milwaukee
condemnation actions against properties adjacent to Milwaukee's
plaintiffs owned a large lot and a residence in an area that was zoned
commercial uses; thus, their use was "non-conforming." After
plaintiffs rejected the county's offers to purchase, the county
property through eminent domain proceedings and paid the plaintiffs
Dissatisfied with the award, the plaintiffs appealed.
The court of appeals, in an opinion authored by Judge Curley,
the trial court properly excluded evidence of the selling prices of
properties, because case law "prohibits the introduction of
the amounts paid for land purchased in settlement or contemplation of
condemnation" (¶ 15).
The majority rejected the plaintiffs' contentions that "foreign
the admissibility of this proof and that the record reflected
sales." "Given the longstanding and well-established
see no need to look to foreign law as the facts here fall squarely
rule and do not permit a different result. The sales of the adjacent
were accomplished as part of the airport expansion and the sellers
aware of the County's intentions to eventually acquire their land for
purpose" (¶ 20).
Second, the trial court also properly excluded a letter that the
attempted to offer to show that a third party had some interest in
their property and thus that there was a "private market for the
property" (¶ 23). "The
general rule in Wisconsin is that unaccepted offers are impermissible
of fair market value in condemnation cases. However, in certain
fair market value may be proved using offers to purchase, but only
are `made with actual intent and pursuant to actual effort to
purchase'" (¶ 27)
(citation omitted). The record here demonstrated that the "letter
conditional and had expired, it does not appear to have been an offer,
its use as an indication of fair market value would, indeed, have been
speculative" (¶ 29).
Finally, the plaintiffs were not entitled to a "housing
payment" under applicable regulations. [This part of the opinion
and space limitations preclude further discussion.]
Judge Wedemeyer dissented; he would have permitted the introduction
concerning the other sales on the ground that these sales were
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Economic Loss - "Product" - Integrated System Rule -
Linden v. Cascade Stone
2004 WI App 184 (filed 17 Aug. 2004) (ordered published 28 Sept. 2004)
The Lindens built a new house, which they moved into in November
June 2000 they sued various subcontractors (and others) for moisture
sustained by their home. The complaint alleged tort and contract
The circuit court granted summary judgment in favor of the
The court held that the economic loss doctrine precluded the tort
all parties and that an insurance policy provided no coverage for a
claim. The Lindens appealed.
The court of appeals, in an opinion written by Judge Peterson,
First, the court held that the economic loss doctrine barred the tort
Although the plaintiffs argued that their claim related to
court agreed with the defendants that the transaction's predominant
concerned "the sale of a product - a house" (¶ 10).
the Lindens' complaint is framed in negligence, their claim is that
not get what they bargained for: a fully functional home without water
problems. All damages are economic losses as the result of a failed
product" (¶ 17).
In response to the Lindens' argument that construction of their home
more services than products, the court explained that the
purpose test is not a fixed calculation weighing dollars or
instead, courts consider contracts' "`thrust, their
purpose'" (¶ 19).
Analyzing the contract and the billings, the court was satisfied that
had entered into a "product contract" (¶ 22). In
the Lindens' contention that the moisture problem had damaged
"other property," the
court held that the economic loss doctrine nonetheless applied because
integrated system rule. "The stucco siding and roof serve no
purpose other than as part of the house. Accordingly, they are
of the integrated system - the house. Any damage to other portions of
does not constitute damage to `other property'"(¶ 26).
The court also rejected the Lindens' argument that an insurance
the contract claim against one subcontractor, because, the court said,
Lindens "invited any error by the trial court" (¶ 27).
the Lindens conceded the issue of coverage based on their
of the coverage of commercial general liability policies" (¶
Finally, the circuit court properly exercised its discretion when it
the Lindens' request to amend their pleadings to add a contract claim
Clergy Abuse - Statute of Limitation
Schauer v. Diocese of Green
2004 WI App 180 (filed 3 Aug. 2004) (ordered published 28 Sept. 2004)
Buzanowski allegedly molested the plaintiff in 1988 when the
10 years old. At the time, Buzanowski was a priest. Although the
reported the sexual abuse to the police in 1990, no charges were
the police warned the plaintiff not to say anything about the
Allegedly the diocese threatened to bring a defamation action against
if the accusations were made public. Buzanowski later admitted to
14 other boys between 1969 and 1988. The plaintiff brought this action
the diocese and the school that employed Buzanowski. The circuit court
summary judgment to the defendants on the ground that the plaintiff's
were time barred.
The court of appeals, in an opinion authored by Judge Peterson,
in part and reversed in part. The plaintiff first argued that the
timely because Wis. Stat. section 895.70(2) extends the statute of
for up to 15 years when the abuse occurs during "therapy."
case law holds that section 895.70 does not extend liability to the
employer. Thus, the statute provides no claim against the diocese or
only against Buzanowski.
The court of appeals reversed and remanded the plaintiff's equitable
claim because the trial judge failed to consider this argument.
was needed to determine whether the diocese knew of the priest's
whether the diocese and the school had threatened the plaintiff,
caused the inducement to delay to cease, and whether the delay was
reasonable" (¶ 18).
Finally, the court of appeals held that controlling case law
plaintiff's argument under the discovery rule. "[The plaintiff]
through church and school and knew that Buzanowski engaged in sexual
with him. [The plaintiff] discovered or, in the reasonable exercise of
should have discovered that he was injured at the time of the assault.
[the plaintiff's] claim of negligent retention and supervision against
diocese and the school accrued at the same time as his claims against
Consequently, as a matter of law, the discovery rule does not apply to
claim against the diocese and the school" (¶ 26).
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