Vol. 77, No. 2, February
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
Releases - Future Claims - Fraud
Napiorkowski, 2003 WI App 249 (filed 26 Nov. 2003) (ordered
published 17 Dec. 2003)
The Gielows sued the Napiorkowskis for misrepresentations regarding
the condition of a home they had sold to the Gielows. The trial court
granted summary judgment in favor of the Napiorkowskis based on a
"release of all claims" given to them by the Gielows in settling prior
litigation between the same parties.
The court of appeals, in a decision written by Judge Nettesheim,
reversed and remanded. "Giving a reasonable meaning to all of the
language of the release, we conclude that the release is ambiguous on
the question of whether the parties intended a global release or a
release limited to the Gielows' claims in the prior litigation. In
addition, we take note that the Napiorkowskis drafted the release. As
such, the ambiguities in the document are construed against them"
(¶ 17). Moreover, the law also recognizes that the consideration
given for a release is a proper factor to consider, and here there was a
substantial disparity between the release ($8,500) and the damage claim
in this action ($80,000).
The court also determined that the summary judgment record raised
material issues of fact on the Gielows' claim of mutual mistake and
unilateral mistake based on fraud. "More specifically, the summary
judgment evidence raises the legitimate question of whether the parties,
in the words of the jury instruction, '[were] unaware of the existence
of a past or present fact material to their agreement' or '[were]
conscious or aware of, or alerted to, the possibility that a fact does
or does not exist, and they waive any inquiry or make no investigation
with respect to [such fact] ....' We similarly hold that the summary
judgment evidence raises a material question of fact on the Gielows'
related claim of unilateral mistake based on alleged fraud. 'A mere
mistake on the part of one, in the absence of fraud on the part of
the other, is not such to avoid a contract obligation'" (¶ 28)
(citations omitted). Finally, the court ruled that there also were
material questions of fact regarding the "fraud in the inducement"
exception to the economic loss doctrine.
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Truth-in-Sentencing - County Jail Confinement as Condition of
Extended Supervision Prohibited
State v. Larson,
2003 WI App 235 (filed 23 Oct. 2003) (ordered published 19 Nov.
The defendant was convicted of homicide by intoxicated use of a
vehicle. The court imposed a bifurcated sentence under the
truth-in-sentencing laws of 5 years' confinement followed by 10 years'
extended supervision. One condition of the extended supervision was that
the defendant be incarcerated in the local jail for two days a year on
the anniversary of the fatal accident.
On appeal the defendant argued that Wis. Stat. section 973.01 does
not authorize the circuit court to order periodic jail confinement as a
condition of extended supervision. In a decision authored by Judge
Dykman, the court of appeals agreed. The court analyzed section
973.01(2) and (5) and concluded that this statute prohibits confinement
as a condition of extended supervision.
Admissibility of Incriminating Statements Given to Private Person -
Coercion by Private Person
State v. Moss, 2003
WI App 239 (filed 1 Oct. 2003) (ordered published 19 Nov. 2003)
The defendant pleaded no contest to a charge of second-degree sexual
assault of a child after the circuit court denied his motion to suppress
an incriminating statement that he gave to the Ozaukee County Social
Services Department. In the statement, he admitted to having sexual
contact with the victim. The defendant argued that his statement was
coerced by his pastoral counselor. The counselor had advised the
defendant that he (the pastoral counselor) was a mandatory reporter and
therefore was compelled under state law to report the defendant's
confidences to legal authorities. He told the defendant to report his
actions to the authorities and that if he did not do so, then the
pastoral counselor would do so. As a result, the defendant reported the
incident. [On appeal, the parties agreed that, in fact, the pastoral
counselor was not a mandatory reporter within the meaning of Wis. Stat.
As described by the court of appeals, the issue before it was whether
the improper coercion of a defendant's incriminating statement by a
person who is not a state agent offends constitutional due process such
that the statement is inadmissible. In a decision authored by Judge
Nettesheim, the appellate court concluded that "there is no due process
violation where, as in this case, a private citizen coerces a confession
from another private citizen and there is no state action or state
nexus" (¶ 2).
The court observed that its rejection of the defendant's
constitutional due process claim did not render statements such as those
at issue in this case automatically admissible. Given the coercive
effect of the pastoral counselor's actions, the defendant could have
availed himself of Wisconsin's rules of evidence to challenge the
reliability of his statement. The court cited Boyer v. State,
91 Wis. 2d 647, 284 N.W.2d 30 (1979) for the proposition that a trial
court has the authority to exclude a statement pursuant to Wis. Stat.
section 904.03 if the statement is so unreliable that its probative
value is substantially outweighed by the danger of prejudice and
Sentencing - Breach of Plea Agreement - Investigating Detective's
Letter to the Court
State v. Matson,
2003 WI App 253 (filed 26 Nov. 2003) (ordered published 17 Dec.
In exchange for a guilty plea in this case, the prosecution and
defense agreed to jointly recommend to the court a specific sentence
that was less than the maximum provided for by law. After the defendant
pleaded guilty but prior to sentencing, the investigating detective on
the case sent a letter to the sentencing court, asking for the maximum
sentence. The sentencing judge then forwarded the detective's letter to
the presentence investigation writer. The court ultimately imposed a
sentence that was substantially greater than that jointly recommended by
The issue on appeal was whether the detective's letter to the court
asking for a prison sentence greater than that agreed to in the plea
bargain constituted a violation of the plea agreement. In a majority
opinion authored by Judge Higginbotham, the court of appeals concluded
that it did. It held that the statements of the investigating officer,
written on police department letterhead and submitted in the officer's
capacity as the investigating officer on the case, constituted
statements of the prosecutor and amounted to a material and substantial
breach of the plea agreement. "Investigating officers are so integral to
the prosecutorial effort that to permit one to undercut a plea agreement
would, in effect, permit the state to breach its promise. If the
prosecutor is obligated to comply with plea bargain promises, then the
prosecutor's investigating officers may not undercut those promises by
making inconsistent recommendations" (¶ 25). In the view of the
court, such a material and substantial breach of the plea agreement
precluded any need to consider what the sentencing judge would have done
had the breach not occurred.
By way of remedy for the breach, the defendant did not seek to
withdraw his plea but instead sought specific performance, a new
sentencing by a different judge with a new presentence report. "While
the choice of remedy is not up to the defendant, if a defendant seeks
only specific performance, we can simply order resentencing by a
different judge. The less extreme remedy of specific performance is
always preferred" (¶ 33). The court concluded that a new circuit
judge should conduct the defendant's sentencing and that, to avoid any
further taint in the case, a new presentence investigation should be
conducted, without consideration of the detective's letter, and a new
report completed by an agent from another county.
Judge Dykman filed a dissenting opinion.
Sentencing - Ability of Defendant to Pay a Fine - OWI Sentencing
State v. Kuechler,
2003 WI App 245 (filed 29 Oct. 2003) (ordered published 17 Dec.
The defendant was convicted of a seventh offense OWI and sentenced to
a three-year term of confinement and a two-year period of extended
supervision. After seeking guidance from local sentencing guidelines for
prohibited alcohol concentration (PAC) offenses, the court also imposed
a fine of $8,852 including surcharges. Among the issues raised in his
motion for postconviction relief, the defendant claimed that the court
erred in not considering his ability to pay the fine. Postconviction
relief was denied and the defendant appealed.
In a decision authored by Judge Anderson, the court of appeals
affirmed in part and reversed in part. With regard to the defendant's
contention that the trial court imposed the fine without first
ascertaining his ability to pay, the appellate court reversed. Because
the defendant timely raised the issue of ability to pay in his
postconviction motion, the trial court had a duty to make a
determination on that issue. Such a hearing is necessary to avoid an
unconstitutional application of the statutes and it does not appear in
the record that there was such a hearing.
The appellate court reminded the trial court that, upon remand, it
should be mindful of the various factors for determining whether to
impose a fine and its amount that have been identified by the American
Bar Association and cited with approval by the Wisconsin Supreme Court.
See ABA Standards on Sentencing Alternatives and Procedures
Finally, the appellate court reminded the state's trial judges that,
in the words of the supreme court, "much time could be saved if trial
courts would follow the practice of ascertaining the defendant's ability
to pay a fine at the time of sentencing." See State ex rel. Pedersen
v. Blessinger, 56 Wis. 2d 286, 296, 201 N.W.2d 778 (1972).
Hearsay - Confrontation
State v. Hale, 2003
WI App 238 (filed 29 Oct. 2003) (ordered published 19 Nov. 2003)
Hale and Jones were charged with armed robbery and homicide and were
convicted in separate trials. A witness, Sullivan, testified in Jones's
trial but was "unavailable" (he couldn't be located) for Hale's trial.
The judge at Hale's trial admitted Sullivan's testimony from Jones's
trial under the former testimony exception, Wis. Stat. §
The court of appeals, in an opinion written by Judge Brown, affirmed
Hale's conviction for homicide and armed robbery. First, the court held
that the transcript of Sullivan's testimony was properly introduced
under the former testimony exception because Hale and Jones had similar
motives and interests in attacking Sullivan's credibility, specifically,
"to discredit any link between Hale and the murder weapon" (¶17).
Because they were charged as parties to the crime, "it was irrelevant
whether it was Jones or Hale who actually fired the gun"
Second, the court addressed whether admission of the hearsay evidence
violated the confrontation right. Prior case law "bound" the court to
view the former testimony exception as "firmly rooted," although the
court expressed some misgivings about the breadth of an earlier decision
(¶23). In particular, the court stated that "were we to write this
decision on a clean slate, we would conclude that the former testimony
exception, when used to permit the introduction of testimony from a
codefendant's trial in which the defendant did not participate, is not a
'firmly rooted' hearsay exception" (¶30). Nonetheless, on the
record before it, the court could "conceive of no possible reason to
question the trustworthiness and reliability of Sullivan's testimony"
[at the earlier trial]. For example, because Sullivan and Hale were good
friends, Sullivan had no motive to falsely inculpate Hale.
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Rimes Hearing - Wrongful Death
Petta v. ABC Ins.
Co., 2003 WI App 241 (filed 21 Oct. 2003) (ordered published 19
Following the death of their mother, the plaintiffs brought a
wrongful death claim against the tortfeasors. Travco Insurance was added
as a subrogated party because it had paid $14,000 in funeral expenses.
The children settled with the tortfeasors and agreed to indemnify them
against any subrogated claims, including Travco's. At a Rimes
hearing, Travco stipulated that the children had not been made whole but
contended that Rimes was inapplicable because they were
Travco's insureds (¶3). The trial court ruled in favor of the
The court of appeals, in an opinion written by Judge Hoover,
reversed. The children were "indeed entitled to bring their medical and
funeral expenses claim on behalf of the payor, Travco. They do
not, however, own the claim exclusively, nor are they entitled to retain
the proceeds of their claim when they did not pay the expenses"
(¶9) (emphasis in original). The children were not "injured" by the
medical and funeral expenses or the damage to the car because Travco
"paid for it" (¶12).
Nor did Rimes somehow dictate a different result. "When we
are faced with the possibility that either an insurer or its insured
must go unpaid because a tortfeasor has a limited pool of funds from
which to pay damages, it is deemed preferable that the insurer go unpaid
and bear the loss the insured paid it to assume" (¶14). No such
relationship was involved here because the children paid nothing to
Travco to receive benefits, nor did the wrongful death statute allow the
children to stand in their mother's "'shoes' vis-à-vis her
relationship with Travco" (¶14). "But for [their] indemnification
agreement, there were two separate causes of action against [the
UM - UIM - "Duplicate" Payments
Fischer v. Midwest Security
Ins. Co., 2003 WI App 246 (filed 20 Nov. 2003) (ordered
published 17 Dec. 2003)
Heather was injured in an accident and incurred medical expenses in
excess of $100,000. Her total damages exceed $150,000. Heather and her
parents (the Fischers) carried both UM (uninsured) and UIM
(underinsured) coverage under a policy with Midwest Insurance. The
tortfeasor had liability coverage with a maximum of $25,000 per person
and $50,000 per accident. Midwest paid the Fischers $125,000 under their
UM coverage but sought to limit the UIM coverage. The Fischers sought a
declaratory judgment on insurance coverage and the court ruled that the
policy entitled Heather to both UM and UIM coverage.
The court of appeals, in a decision written by Judge Dykman, affirmed
in an opinion that confronted an "issue of first impression": "[M]ay an
insured recover compensatory damages under separate UM coverage and UIM
coverage in a single accident? Wisconsin has well-developed law
regarding UM and UIM coverage. Nevertheless, no authority has addressed
the situation where an insured has claims from a single accident for
both UM and UIM coverage because of the insurance status of
multiple-tortfeasors" (¶ 7).
The policy provided both UM and UIM coverage. Midwest had three
possible theories by which to limit or eliminate both UM and UIM
coverage: 1) the limits of liability contained in the Declarations page;
2) a reduction clause; and 3) the ban against duplicate payments. The
court found it unnecessary to address the reduction clause contention.
As for the Declarations page, "the policy anticipates and covers two
different kinds of risks. We conclude subsec. A in each endorsement's
Limit on Liability provision limits the insured's recovery in one
accident to the maximum amounts identified in the Declarations. This
limitation does not preclude recovery under more than one type of
coverage; thus, subsec. A does not prevent the Fischers from recovering
under both their UM and UIM coverage in a single accidental" (¶
16). The court also held that the policy "does not render payments under
separate UM and UIM coverage duplicate payments for the same elements of
loss" (¶ 23). It reasoned that "UM and UIM describe two different
types of loss caused by two different types of risks" (¶ 22). In
the end the court found that the policy provision was ambiguous and
construed it against Midwest.
Exclusions - Lack of Notice
Kozlik v. Gulf Ins.
Co., 2003 WI App 251 (filed 19 Nov. 2003) (ordered published 17
Leverance was a "repeat" customer of Enterprise Rent-a-Car who always
took the personal accident insurance (PAI), issued by Gulf Insurance
Company. Leverance was killed while driving the rented car in a drunken
condition. When sued for the PAI benefits, Gulf asserted an alcohol
exclusion, but the trial court ruled that it was not enforceable because
Leverance was not given a copy of the policy or a summary of its
provision when renting this particular car.
The court of appeals, in a decision authored by Judge Brown,
affirmed. First, the court reviewed the record and held that "the trial
court correctly determined that Leverance did not have notice of the
terms and conditions contained in the November 30 rental agreement"
It next addressed whether Gulf could nonetheless rely on the alcohol
exclusion despite the lack of notice. No Wisconsin case "speak[s] to
whether an insurer can rely on policy exclusions when it fails to inform
the insured of the policy's coverage and limitations" (¶ 12). Cases
from other jurisdictions are split. The court of appeals decided,
however, "that it would be unjust to permit an insurance company to
accept premiums and then deny liability based on an exclusion of which
the insured was not aware because the insurance company had not informed
him or her of the exclusion or given him or her the means to ascertain
its existence. Purchasers of insurance policies, like the one at issue
here, commonly rely on the assumption that they are fully covered by the
insurance that they buy.... We therefore hold that an insurer may not
deny coverage based on limitations or exclusions in a policy, even if
clearly stated, where the insured was not otherwise informed of such
provisions" (¶ 15). (The court also held that Gulf was responsible
for prejudgment interest based on an offer to settle that complied with
Wis. Stat. section 807.01.)
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Motor Vehicle Law
OWI - Proof of Prior Convictions When Prior Record an Element of OWI
State v. Van Riper,
2003 WI App 237 (filed 1 Oct. 2003) (ordered published 19 Nov. 2003)
The defendant went to trial on a charge of third offense driving with
a prohibited alcohol concentration. Before trial, he stipulated that he
had operated the vehicle and that he had a blood alcohol content in
excess of the .08 limit that applied to him by virtue of his prior
record. However, he contested the remaining element of the offense - the
alleged two prior OWI convictions. This last element was tried to the
At the trial the state filed a certified Wisconsin Department of
Transportation (DOT) transcript of the defendant's driving record, which
reflected a prior Minnesota OWI conviction and a prior Wisconsin OWI
conviction. The circuit court received the certified driving record as
evidence and ruled that it established beyond a reasonable doubt the
defendant's status as a repeat offender.
The court of appeals, in a decision authored by Judge Nettesheim,
affirmed. The court held that the certified driving transcript was
admissible evidence, and that it established the defendant's repeater
status as an element of the prohibited alcohol concentration offense
beyond a reasonable doubt. A certificate bearing the state of Wisconsin
DOT seal and the signature of the Division of Motor Vehicles
administrator accompanied the defendant's DOT driving record. Both
Wisconsin case law and statutes support the admission at trial of this
type of certified document as proof of the defendant's prior
OWI - Nonconsensual Blood Draw Following Breath Test
State v. Faust,
2003 WI App 243 (filed 1 Oct. 2003) (ordered published 19 Nov. 2003)
After the defendant was arrested for OWI, he was taken to the local
police department, where he agreed to provide a sample of his breath for
chemical analysis. The breath test reflected a blood alcohol content of
.09, which was .01 above the prohibited alcohol concentration (.08)
pertinent to the defendant as a third offender. The officer then advised
the defendant that he would seek a blood test as well. The defendant
refused to consent to the blood test, and a forced blood sample was
subsequently drawn from him at the hospital. That sample reflected a
blood alcohol level of .10.
The defendant filed a motion to suppress the blood test results,
arguing that since the breath test had already established that his
blood alcohol content exceeded the prohibited limit, there was no longer
any exigency justifying a warrantless blood draw at the hospital. The
circuit court granted the motion.
On this appeal neither party questioned that pursuant to Wisconsin's
implied consent law, a law enforcement officer who has obtained a
voluntary sample of breath, blood or urine for chemical testing may
request that the driver give a second, different sample for testing.
Rather, the specific issue on appeal was whether the exigent
circumstances exception to the Fourth Amendment applies to a warrantless
blood draw after a law enforcement officer has already obtained a valid,
voluntary breath test.
In a majority decision authored by Judge Brown, the court of appeals
held that "once an individual arrested on probable cause for OWI has
provided a satisfactory and useable chemical test, the exigent
circumstances justifying a warrantless and nonconsensual blood draw no
longer exist" (¶ 1). The court reached this conclusion by
application of language in State v. Krajawski, 2002 WI 97, in
which the supreme court instructed that "the exigency that exists
because of dissipating alcohol does not disappear until a satisfactory,
useable chemical test has been taken." Unless a law enforcement officer
has some basis for believing that the first test is unreliable or
unusable, the exigent circumstances permitting the officer to conduct a
forcible blood draw no longer exist.
In this case the record contained no evidence that the police were
concerned about the breath test being in any way unsatisfactory or
unusable. For example, there was no evidence that the equipment was not
working properly or that the defendant's breath sample was insufficient.
Further, the officer acknowledged that he had no reason to believe that
the defendant was under the influence of some other type of controlled
substance, and that he did not request the blood test for the purpose of
detecting the presence of controlled substances.
In a footnote, the court observed that there was no dispute in this
case that the officer believed that the breath test was valid. It was
also undisputed that the defendant's blood alcohol content exceeded the
legal limit applicable to him. "We express no opinion as to whether
exigent circumstances would remain if the defendant tested under the
limit. We will leave it up to a future court to decide whether a result
unfavorable to police is. . . not 'satisfactory and usable' such that
exigent circumstances remain" (¶ 16 n.2).
Judge Nettesheim concurred, indicating that he disliked the result in
this case but that he had no choice but to affirm, given the passage
from Krajawski cited above.
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Municipal Trials - Trials De Novo on Appeal
City of Pewaukee v.
Carter, 2003 WI App 260 (filed 19 Nov. 2003) (ordered published
17 Dec. 2003)
Defendant Carter received two citations for operating a motor vehicle
while intoxicated (OWI) and operating with a prohibited alcohol
concentration (PAC). A trial was held in the municipal court. At the
close of the city's case against Carter, his attorney moved for
dismissal on the ground that the city had failed to meet its burden of
proof. The court granted the motion. The city then appealed the
municipal court's decision and requested a new trial before the circuit
court pursuant to Wis. Stat. section 800.14(4). Carter brought a motion
to dismiss the action, arguing that this statute did not countenance a
new trial in the circuit court under the circumstances of this case. The
circuit court agreed.
In a majority decision authored by Judge Anderson, the court of
appeals affirmed. Section 800.14(4) provides that either party to a
circuit court appeal from a municipal court decision may request that a
new trial be held in the circuit court. Applying Village of
Menomonee Falls v. Meyer, 229 Wis. 2d 811, 601 N.W.2d 666 (Ct. App.
1999), the court of appeals concluded that this statute does not permit
a new trial before the circuit court when the case was judicially
resolved, but not fully litigated on the merits, before the municipal
court. "In order for a matter to be resolved on the merits, both parties
must have exercised the prerogative to present or to rest their case.
Carter's case was 'judicially resolved' (that is, resolved by a question
of law) but was not fully litigated on the merits when the municipal
court granted his motion to dismiss made immediately after the city
rested. The circuit court properly rejected the city's appeal for a new
trial" (¶ 21).
In footnote, the court observed that section 800.14(5) provides that
if there is no request for a new trial under section 800.14(4), an
appeal to the circuit court shall be based upon a review of the
transcript of the municipal proceedings. Thus, the city had an
opportunity to seek a meaningful review of the municipal court's
judgment through an appeal on the record under section 800.14(5).
Judge Brown filed a dissenting opinion.
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Land - Right of First Refusal - Triggering Event
Wilber Lime Products Inc. v.
Ahrndt, 2003 WI App 259 (filed 25 Nov. 2003) (ordered published
17 Dec. 2003)
Wilber Lime Products (WLP) held a right of first refusal to 25 acres
of a farm owned by Robert Ahrndt. After Ahrndt's death, his estate sold
the entire farm, including the parcel, to Renee Ahrndt. The trial court
held that this sale triggered WLP's right to purchase the 25 acres.
The court of appeals, in a decision written by Judge Peterson,
affirmed and also held that WLP may purchase the 25 acres at its fair
market value (not at its pro rata value). The case presented an issue of
first impression over which the jurisdictions are split. The circuit
court's "thoughtful opinion" drew upon a Michigan case that adopted a
minority approach. The court of appeals adopted instead a "middle
approach" taken from a Fourth Circuit case, which held that under such
circumstances the "first refusal was triggered and that awarding
specific performance was consistent with the parties' intent when they
agreed to the right of first refusal" (¶ 11). Nonetheless, a
"simple pro rata valuation" was unfair; thus, the court remanded for an
allocation of the fair market value of the property burdened by the
right of first refusal. As applied to this case the court agreed that
the sale of the entire 180-acre farm triggered WLP's right of first
refusal to the 25 acres because they were sold as part of a "package
deal." On remand, the court is to determine the fair market value of the
25 acres in question, since "the acres being sold are not all of equal
Easements - Bona Fide Purchaser
Turner v. Taylor,
2003 WI App 256 (filed 25 Nov. 2003) (ordered published 17 Dec.
Arising out of a "complicated history of numerous land conveyances,"
this appeal "centers on an easement that was last recorded in 1959 in a
deed for" a specific parcel of land. The court of appeals, in a decision
written by Judge Cane, reversed the circuit court's grant of summary
judgment and remanded the matter with directions. The court acknowledged
that its holding might have the effect of "extinguishing a legitimate
interest," but that Wis. Stat. section 706.09 contemplated that very
possibility (¶ 28).
The court construed Wis. Stat. section 706.09, a "title curative"
statute that "extinguishes interests or claims that are adverse to or
inconsistent with merchantable title when the following circumstances
are present. First, the estate or interest must be purchased for
valuable consideration, i.e., the purchaser must be bona fide.
Wis. Stat. § 706.09(1). Second, the adverse claim or interest must
fall into one of the eleven listed situations. Wis. Stat. §§
706.09(1)(a)-(k). Third, the adverse claim or interest must not be
exempt from the statute. Wis. Stat. § 706.09(3). Fourth, the
purchaser must not have had affirmative or express notice of the adverse
claim or interest at the time the purchaser's interest developed in law
or equity" (¶ 8) (citations omitted).
The "limited issue" on appeal concerns whether the language "any
interest not of record within 30 years" includes easements (¶ 9).
The court held that the statute does embrace easements, relying on its
plain language as bolstered by public policy and the "overall scope" of
Wis. Stat. chapter 706. See ¶¶ 10-12. The court also
rejected arguments that its conclusion created a conflict with the
statute of limitation for recorded easements, the conservation easement
exemption from the recorded easement statute of limitation, and worked
to expand the mineral rights interest recording provisions. Finally, the
court's conclusion did not conflict with the State Bar of Wisconsin's
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County Jail Inmates - Liability of County for Medical Costs
Meriter Hospital Inc. v.
Dane County, 2003 WI App 248 (filed 26 Nov. 2003) (ordered
published 17 Dec. 2003)
The sheriff brought a county jail inmate to the hospital when the
inmate became very ill. Within three days, the sheriff informed the
prosecutor that the inmate had been hospitalized. The state immediately
moved to dismiss the charges against the inmate and the trial court
granted the motion. The Department of Corrections (DOC) also canceled an
order to detain the inmate. The DOC did issue an apprehension request,
stating that the hospital was to contact the sheriff or the inmate's
probation agent before releasing the inmate from the hospital. When that
time came, however, the sheriff did not detain him. Hospitalization
lasted for 34 days with medical bills amounting to $187,000, which the
inmate is unable to pay.
The hospital filed suit, contending that Wis. Stat. section 302.38
requires the county to pay the medical bills incurred at the hospital.
Summary judgment was entered against the county but only in the amount
of $8,600. In a decision authored by Judge Dykman, the court of appeals
Wis. Stat. section 302.38 provides that the prisoner is liable for
the costs of medical and hospital care outside the jail or house of
correction. However, if the prisoner is unable to pay the costs, the
county shall pay the costs "in the case of persons held under the state
criminal laws or for contempt of court." Both parties agreed that this
statute controls, that the inmate was an indigent prisoner when
admitted, and that the hospital may recoup from Dane County some of the
costs of his care. They disagreed, however, as to whether the statute
requires the county to pay for the costs incurred after the trial court
dismissed the charges against the inmate.
The appellate court concluded that a patient either must be held
under the state criminal laws or for contempt of court while receiving
treatment in order for the county to be liable for medical costs. In
this case the patient lost his status as a person "held under the state
criminal laws" after the trial court dismissed the charges against him.
Accordingly, the county is liable only for the first three days of his
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Separation of Powers
Continuance of Court Proceedings for Legislators While the
Legislature is in Session - Wis. Stat. Section 757.13
State v. Chvala,
2003 WI App 257 (filed 13 Nov. 2003) (ordered published 17 Dec.
The defendant, a senator in the Wisconsin Legislature, was charged
with extortion, misconduct in public office, and violations of campaign
finance statutes. The issue on appeal was whether Wis. Stat. section
757.13 prohibits the trial court from scheduling the trial in this case
before the last general business floor session of the legislature
The statute provides that "when a witness, party or an attorney for
any party to any action or proceeding in any court or any commission, is
a member of the Wisconsin legislature, in session, that fact is
sufficient cause for the adjournment or continuance of the action or
proceeding, and the adjournment or continuance shall be granted without
the imposition of terms."
In a decision authored by Judge Vergeront, the court of appeals
concluded that this statute violates the doctrine of separation of
powers if it is construed to mandate the trial court to grant the
defendant's request that the trial not be scheduled until the conclusion
of the legislative session. This is so because, if construed as
mandatory, the statute would unduly burden the judiciary or
substantially interfere with the constitutional exercise of its
authority over the matter of continuances and adjournments. However, the
court concluded that there is a reasonable construction of the statute
that would render it constitutional. It held that "the statute may be
reasonably construed to allow a court to exercise its discretion on
whether to grant or deny a continuance or adjournment when a witness,
party, or party's attorney is a member of the legislature in session"
"We therefore construe the statute to direct the courts to consider,
in the sound exercise of their discretion, that a witness, party, or
party's attorney is a member of the legislature in session when such
person seeks a continuance or adjournment for that reason. In keeping
with the recognition that the matter of continuances or adjournments for
members of the legislature in session is encompassed within the
constitutional powers of the legislature, and that legislators'
attendance when the legislature is in session is critical to the ability
of the legislature to carry out its constitutional powers, courts should
carefully consider requests for continuances or adjournments; and courts
should accommodate the schedule of the legislature consistent with the
demands of fairness and efficiency in the particular case" (¶
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Damages - Future Health Care Expenses
Weber v. White,
2003 WI App 240 (filed 14 Oct. 2003) (ordered published 19 Nov.
A jury awarded the plaintiffs $5,000 for future health care expenses.
In a decision authored by Judge Fine, the court of appeals reversed
because the award was not supported by the evidence. Specifically,
"there was no evidence from which the jury could infer that Mrs. Weber's
future health-care expenses were reasonably certain to occur because Dr.
Hanacik's testimony was fatally contradictory" (¶14). "Dr.
Hanacik's express concession that he could not give an opinion to a
reasonable degree of chiropractic certainty on Mrs. Weber's future
health-care expenses negated his earlier testimony where he purported to
give such an estimate. The jury's verdict attempting to divine the costs
of future therapy was thus based on nothing but speculation, and the
$5,000 award must be vacated" (¶15) (citation omitted).
Safe Place - Notice
Megal v. Green Bay Visitor
& Convention Bureau, 2003 WI App 230 (filed 7 Oct. 2003)
(ordered published 19 Nov. 2003)
The plaintiff slipped on a french fry while walking down the stairway
at the Brown County arena. Since she could not prove that the defendants
had either actual or constructive notice of the unsafe condition, she
argued that her case fell within an "exception": "there [was] a
reasonable probability the unsafe condition occurred because of the
nature of the business and the manner in which it is conducted"
(¶1). The circuit court granted summary judgment in favor of the
The court of appeals, in an opinion written by Judge Peterson,
affirmed. The first issue was whether the plaintiff's argument raised an
issue of fact or law, namely, "Did the proprietor know the french fry
was on the stairs?"(¶13) The court held that this was a question of
law because "there [was] no dispute about the happening of events"
The court next addressed the "narrow" exception to the "ordinary
notice rules" (¶21), under which an unsafe condition can arise from
the "nature of the business and the manner in which it is conducted."
The case law limited the exception "to the immediate area where the
dangerous condition was created, namely, at the location of the
self-service. In both [cited cases], the debris fell immediately
adjacent to the area from which it came. Here, the french fry was well
removed from the area where it was purchased" (¶21). If the
exception extends to a french fry on the stairwell, the exception would
"swallow" the rule (¶22). The court observed that the arena is
about 61,000 square feet in area with seating for more than 5,000
people. Patrons may take food and drinks anywhere in the arena.
Moreover, the exception would then extend to "stadiums, theaters,
restaurants, [and] shopping malls" (¶23).
Judge Cane dissented for four reasons: "first, whether constructive
notice of an unsafe condition may be charged to the arena is a fact
question for the jury; second, the majority opinion rewrites the . . .
exception; third, the majority opinion is improperly driven by policy
considerations; and, finally, our standard of review requires reversal
of summary judgment" (¶26).
Health Care Records - Defamation - Negligence
Hart v. Bennet,
2003 WI App 231 (filed 16 Oct. 2003) (ordered published 19 Nov.
Hart was enrolled in a physician assistant program when he was
charged with several crimes against his girlfriend. He was eventually
dismissed from the program but later sought reinstatement based, in
part, on a positive letter written by Bennet, an employee at a center
where Hart was enrolled in a domestic abuse program. After writing the
positive letter, Bennet belatedly spoke with the victim, who painted a
very different picture of Hart. Bennet then wrote another, extremely
negative letter that was sent to Hart, the district attorney, and the
physician assistant program. Hart's efforts to be reinstated were not
successful and he began this lawsuit against Bennet. The circuit court
dismissed all claims against the defendants for a variety of
In an opinion authored by Judge Vergeront, the court of appeals
affirmed in part and reversed in part. First, the court held that
summary judgment was properly granted in Bennet's favor on Hart's claim
that the second letter violated his right to confidentiality of patient
health care records under Wis. Stat. section 146.82. It was undisputed
that Bennet himself was not a health care provider, as defined by Wis.
Stat. section 146.81(1)(a) to (hp). "It [was] also not disputed that no
licensed psychiatrist or psychologist is employed by the Center in the
Men's Abuse Program and Bennet is not supervised by a licensed
psychiatrist or psychologist" (¶15). The court rejected Hart's
argument that the statute should be interpreted to mean "'a corporation
that employs any providers'"; rather, "the more reasonable
reading is that the corporation's shareholders are providers specified
in paras. (a) to (hp)" (¶17) (emphasis in original).
Second, the court of appeals held that the trial court erred in
dismissing the defamation claim. In particular, Bennet's recounting in
the second letter of the victim's statements could give rise to
defamation. It is not a defense that the tortfeasor "accurately
repeated" someone else's defamatory statements (¶25). Since issues
of fact remained, including whether Bennet had a conditional privilege,
the claim was remanded for trial. Third, the court of appeals held that
the trial court also erred in dismissing Hart's professional negligence
claim, which stood apart from the issues raised under Wis. Stat. section
Finally, the court of appeals held that the trial court properly
dismissed Hart's claim for intentional infliction of emotional distress,
because his own affidavit revealed no basis for finding "extreme and
disabling emotional distress" (¶39).
Vicarious Liability - Franchisor
Kerl v. Rasmussen,
2003 WI App 226 (filed 9 Oct. 2003) (ordered published 19 Nov. 2003)
In June 1999 Pierce left his late-shift job at an Arby's restaurant
and walked to a nearby Wal-Mart store, where he shot his former
girlfriend (Kerl) and her fiancée (Jones), who worked there. Pierce
then killed himself. Jones also died, but Kerl survived and suffered
permanent disability. The plaintiffs sued the franchisor, Arby's, and
its franchisee, the restaurant where Pierce worked, for negligent
hiring, supervision, and retention (among other claims). The plaintiffs
alleged that Arby's was vicariously liable for the franchisee's alleged
negligence. The trial court granted summary judgment in Arby's
The court of appeals, in an opinion written by Judge Dykman,
affirmed. First, noting that the court of appeals had never before
"addressed the issue of vicarious liability in the context of a
franchise relationship" (¶10), it held that "in an action seeking
to impose vicarious liability on a franchisor for the negligent actions
of a franchisee, a franchisor's general right to control several aspects
of a franchisee's operations is not enough. Rather, the decisive factor
is whether the franchisor controls the daily operations of the
franchisee such that it 'exercises a considerable degree of control over
the instrumentality at issue'" (¶19).
On the facts of record, the court of appeals found that the
plaintiffs failed to bring forth enough evidence to warrant a trial. For
example, the licensing agreement did not give Arby's authority to "hire,
fire, supervise or direct the supervision" of the franchisee's employees
(¶25). Nor did the right to inspect the premises demonstrate
"either a right of control or actual control" over the franchisee's
supervision of its employees (¶28).
Judge Lundsten concurred with the result but did not join the
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