Vol. 77, No. 5, May
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
Reopening Judgments - Res Judicata - Pro Se Litigants
Shanee Y. v. Ronnie
J., 2004 WI App 58 (filed 24 Feb. 2004) (ordered published 24
The court of appeals, in a decision authored by Judge Wedemeyer,
reversed a trial court order that had denied the alleged father's motion
to reopen a paternity judgment. No reasonable basis existed to deny the
motion under Wis. Stat. section 806.07(1)(h), which permits relief from
a judgment for "other reasons." Although use of the statute is limited
to instances in which "the sanctity of the final judgment is outweighed
by the incessant command of the court's conscience that justice be done
in light of all the facts," ultimately the trial court must balance the
"intervening circumstances" element of section 806.07(1)(h) with the
"fairness/finality" principles of "res judicata" (¶ 12).
In this case, default judgments had been entered against Ronnie, who
was incarcerated at the time and was never personally served. The trial
court later found that Ronnie was not the biological father of the
children and had no "historical relationship with them" (¶ 14). Nor
had Ronnie "slept on his rights." He was a "less than sophisticated pro
se litigant when he filed his first and second motions to reopen the
judgments." Moreover, it was "obvious that through most of his travail,
Ronnie was the victim of his own uninformed knowledge of the intricacies
of the judicial system, receiving the assistance of counsel only in his
third attempt to right the record" (¶ 19).
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Foreclosure Sale - Confirmation
Bank of New York v.
Mills, 2004 WI App 60 (filed 11 Feb. 2004) (ordered published
24 March 2004)
The court of appeals, in an opinion written by Judge Anderson,
affirmed a trial court order that confirmed the sale of certain
mortgaged property. The primary issue on appeal was whether the
confirmed sale price represented "fair value." "The language of Wis.
Stat. §846.165(2) that 'no sale shall be confirmed and judgment for
deficiency rendered until the court is satisfied that the fair value of
the premises sold has been credited on the mortgage debt, interest and
costs' has been interpreted by the supreme court to mean nothing more
than 'such reasonable value as does not shock the conscience of the
court'" (¶ 11).
The trial court exercised appropriate discretion in determining that
the winning bid "was not so inadequate as to shock its conscience"
(¶ 12). "A sheriff's sale is a distress sale; it is not conducted
by a willing seller. The buyer bids at a sheriff's sale knowing that he
or she is bidding on a piece of real estate at less than its market
value because it is being sold to pay off a debt. The distress nature of
the sale automatically reduces the price" (¶ 17). The trial court
properly considered, yet remained "unimpressed" with, evidence that
established the property's "fair market value" (¶ 19). Moreover,
the former owners had 18 months during which to sell the property but
were unable to do so.
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Automobiles - Warranty Claim
Mayberry v. Volkswagen of
Am. Inc., 2004 WI App 64 (filed 24 Feb. 2004) (ordered
published 24 March 2004)
Mayberry brought a Magnuson-Moss Warranty Act claim against
Volkswagen of America (VW) alleging that her car was defective. She
purchased the car in October 2000 for about $22,500. The car was covered
by a two-year, 24,000-mile warranty. In June 2002 Mayberry filed her
complaint against VW based on the car's numerous defects. In September
2002, having put more than 32,000 miles on the car, Mayberry traded it
and received a $15,000 allowance. Mayberry testified that when she
accepted the car in October 2000, it was worth only about $12,000. The
circuit court granted summary judgment in favor of VW because Mayberry
had traded in the allegedly defective vehicle for more than its fair
market value and thus had suffered no damage.
The court of appeals, in a decision written by Judge Hoover, reversed
because the record presented an issue of fact. Mayberry, as the car's
owner, was qualified to testify to its value at the time of acceptance
(October 2000). "[T]he measure of damages in Wisconsin for breach of
warranty under the Act is found in Wis. Stat. §402.714(2). Nowhere
does the statute suggest that the fair market value at the time of
trade-in is the appropriate yardstick. . . . Thus, based on the
statutory measure of damages in §402.714(2), a genuine issue of
fact exists on the question of damages. Mayberry has offered evidence of
the Jetta's value at the time and place of acceptance [October 2000].
Volkswagen, however, has offered evidence suggesting 'proximate damages
of a different amount.' The difference cannot be resolved in summary
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Burglary - Multiplicity - Convictions Under Wis. Stat. section
943.10(2)(a) and (2)(d)
State v. Beasley,
2004 WI App 42 (filed 26 Feb. 2004) (ordered published 24 March
The defendant was convicted of multiple felonies, including two
counts of burglary, based on a single home invasion. One count involved
burglary with intent to steal while armed with a dangerous weapon (Wis.
Stat. § 943.10(2)(a)); the other count involved burglary with
intent to steal while committing a battery upon a person lawfully in the
burglarized enclosure (Wis. Stat. § 943.10(2)(d)). On appeal the
defendant contended that the two burglary charges were
In an opinion authored by Judge Lundsten, the court of appeals first
dealt with the issue of whether these two subsections of the burglary
statute define stand-alone crimes or, alternatively, whether they are
simply penalty enhancers aggravating the underlying crime of burglary.
The court concluded that they are stand-alone crimes. The court then
considered whether the defendant could be convicted of both crimes
arising out of a single incident of home invasion.
The methodology for resolving the propriety of multiple convictions
and punishments in a context like this was set forth by the supreme
court in State v. Davison, 2003 WI 89, 263 Wis. 2d 145, 666
N.W.2d 1. "If charged offenses are identical in law and fact using the
Blockburger [v. United States] test, there is a
presumption that the legislature did not intend multiple punishments.
This presumption is only overcome by a clear indication of contrary
legislative intent. On the other hand, if charged offenses are
not identical in law and fact using the Blockburger
test, there is no potential double jeopardy problem, but there may be a
due process problem if the legislature did not intend to authorize
cumulative punishments. In this second situation, there is a presumption
that the legislature intended to permit cumulative punishments, and the
defendant has the burden of overcoming this presumption by showing a
clear legislative intent that cumulative punishments are not authorized.
The defendant must meet that burden in light of four factors: (1) all
applicable statutory language; (2) the
legislative history and context of the statute; (3) the nature of the
proscribed conduct; and (4) the appropriateness of multiple punishment"
(¶ 9). [The Blockburger test inquires whether each crime
requires proof of an additional fact that the other does not.
See 284 U.S. 299 (1932).]
Applying this methodology, the appellate court concluded that each
burglary charge in this case requires proof of an element that the other
does not. One requires proof of burglary while armed with a dangerous
weapon, while the other requires evidence of battery committed upon a
person lawfully within the burglarized enclosure. Because the two counts
are not identical in law, there is no potential double jeopardy problem,
and it is presumed that the legislature intended to permit multiple
punishments for these crimes. The court next considered the due process
issue of whether the legislature intended to authorize cumulative
punishments. Applying the factors for discerning legislative intent
articulated above, the court concluded that the defendant did not meet
his burden of showing clear legislative intent that multiple punishments
for these two burglaries were not authorized by the legislature. The
convictions on both burglary counts were thus affirmed.
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Truth-in-Sentencing - Power of Court to Determine When Defendant is
Eligible for Challenge Incarceration ("Boot Camp") Program
State v. Lehman,
2004 WI App 59 (filed 4 Feb. 2004) (ordered published 24 March 2004)
The defendant was convicted of armed robbery and was sentenced to
eight years of confinement in prison followed by 10 years of extended
supervision. The court also found that the defendant was eligible for
the challenge incarceration ("boot camp") program. However, the court
imposed a four-year waiting period on the defendant's eligibility for
the program. The defendant filed a postconviction motion to set aside
this waiting period, claiming that the court lacked authority to impose
it. The circuit court disagreed and denied the motion.
In a decision authored by Judge Snyder, the court of appeals
affirmed. It conceded that Wis. Stat. section 973.01(3m), the challenge
incarceration eligibility statute in question, admits of two
incompatible yet reasonable interpretations. However, the court
concluded that the legislature's intent to shift greater sentencing
authority to the judiciary in the new truth-in-sentencing regime is
advanced by a statutory interpretation that allows a sentencing court to
determine not only whether a defendant is eligible for boot camp, but
also to set a date of eligibility within the term of confinement portion
of the sentence. Accordingly, the court held that the statute authorizes
the sentencing court, in the exercise of its discretion, to determine
both if and when a defendant is eligible for the challenge incarceration
Validity of Plea Agreement - Warrantless Arrest During Execution of
Search Warrant - Arrest Outside of Officer's Employing Jurisdiction
State v. Cash, 2004
WI App 63 (filed 25 Feb. 2004) (ordered published 24 March 2004)
The defendant appealed from a burglary conviction and an order
denying his postconviction motion to withdraw his no contest plea. One
of his arguments on appeal was that his plea was premised on an invalid
The plea agreement provided that if the defendant returned a
substantial portion of the stolen property in good working order before
sentencing, the state would ask the court to reopen the judgment on the
burglary charge, would request that the charge be reduced to felony
theft, and would make a specific sentencing recommendation. The
defendant argued that this agreement was invalid under State v.
Hayes, 167 Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992), which
prohibits a plea bargain that allows a judgment to be reopened and
amended to recite a lesser conviction if the defendant successfully
In a decision authored by Judge Nettesheim, the court concluded that
Hayes did not render the plea agreement in this case invalid.
The agreement here provided that following the defendant's plea of no
contest, he would have the opportunity prior to sentencing to
procure and return the stolen items. If the defendant satisfied this
contingency, the state would amend the charge to a lesser offense and
sentencing would proceed accordingly. Unlike the defendant in
Hayes, the defendant here would not have served any portion of
his sentence, probation or otherwise, before any amendment of the
charge. Accordingly, the court concluded that the plea agreement in this
case was not invalid under Hayes.
The defendant also raised ineffective assistance of counsel claims.
One of his arguments was that his attorney was ineffective for failing
to seek suppression of certain of the defendant's statements. The
defendant argued that his arrest was unlawful under Payton v. New
York, 445 U.S. 573 (1980), which prohibits a warrantless arrest in
the home, and that his post-arrest statements therefore should have been
In this case, while it is true that the police did not have an arrest
warrant, they did have a search warrant for the defendant's premises and
were lawfully present on those premises to execute the search warrant
when they made the warrantless arrest of the defendant. In U.S. v.
Winchenbach, 197 F.3d 548 (1st Cir. 1999), the court held that if
the police are lawfully on the suspect's premises by virtue of a valid
search warrant, they may make a warrantless arrest of the suspect before
the search if the arrest is supported by probable cause. In this case
the court of appeals adopted Winchenbach for purposes of
Wisconsin law. Because the police were lawfully present in the
defendant's home by virtue of a valid search warrant and because they
had probable cause to arrest the defendant, the court rejected the
defendant's claim that his lawyer was ineffective for failing to
challenge the warrantless arrest.
The defendant also claimed ineffective assistance of counsel because
his attorney failed to contest the authority of Waukesha County
detectives to execute the search warrant and make the arrest in the city
of Milwaukee. The defendant relied on Wis. Stat. section 175.40(6),
which deals with arrests in a jurisdiction other than the one that
employs the arresting officer. Among other things, the statute calls for
the employing police agency to adopt written policies covering the
authority of its officers to arrest in another jurisdiction. The
defendant claimed that the state did not establish the existence of such
policies in this case, and therefore the evidence obtained incident to
his arrest should have been suppressed.
The appellate court concluded that even if the Waukesha County
Sheriff's Department had not adopted the written policies required by
the statute (an assumption made for the sake of argument), suppression
would not be an appropriate remedy for such a statutory transgression.
Wrongfully or illegally obtained evidence is to be suppressed only if
the evidence was obtained in violation of an individual's constitutional
rights or in violation of a statute that expressly requires suppression
as a sanction. Section 175.40 does not protect a constitutional right
nor does it recite suppression as a sanction for its violation.
Accordingly, the defendant was not prejudiced by his counsel's failure
to challenge his arrest on this ground.
Probation Revocation - Reopening Revocation Hearing on Basis of
Newly Discovered Evidence
State ex rel. Booker v.
Schwarz, 2004 WI App 50 (filed 10 Feb. 2004) (ordered published
24 March 2004)
The issue in this case was whether a person whose probation has been
revoked has a right to reopen a revocation hearing based on newly
discovered evidence. This is a matter of first impression in Wisconsin.
It was undisputed that there are no administrative code provisions
providing for such a right. Nonetheless, the petitioner argued that due
process requires that such a process be permitted, by analogy to
criminal proceedings (see State v. Bembenek, 140 Wis.
2d 248, 409 N.W.2d 432 (Ct. App. 1987)). [Bembenek established
a five-prong test that the defendant must satisfy in order to be granted
a new trial on the basis of newly discovered evidence: "(1) The evidence
must have come to the moving party's knowledge after a trial; (2) the
moving party must not have been negligent in seeking to discover it; (3)
the evidence must be material to the issue; (4) the testimony must not
be merely cumulative to the testimony which was introduced at trial; and
(5) it must be reasonably probable that a different result would be
reached on a new trial" ¶ 12.]
In a decision authored by Judge Wedemeyer, the court of appeals held
that "the determination of whether a claim that newly discovered
evidence entitles a probation revokee to an evidentiary hearing to
determine whether a new probation revocation hearing should be conducted
shall be governed by procedures analogous to those in criminal cases"
In so holding, the court set forth the following standards and
requirements to govern these types of cases: "If a movant wishes to have
an evidentiary hearing on a newly discovered evidence claim, he or she
may not rely on conclusory allegations. If the claim is conclusory in
nature, or if the record conclusively shows that the movant is not
entitled to relief, the Division [of Hearings and Appeals] may deny the
motion without an evidentiary hearing. See State v. Bentley,
201 Wis. 2d 303, 309-11, 313-18, 548 N.W.2d 50 (1996). To obtain an
evidentiary hearing on the newly discovered evidence claim, the movant
must allege with specificity the Bembenek factors in the
post-revocation motion. See Bentley, 201 Wis. 2d at
313-18. Whether the motion sufficiently alleges facts which, if true,
would entitle the movant to relief is a question of law to be reviewed
independently by this court. See id. at 310. If the
Division refuses to hold a hearing based on its findings that the record
as a whole conclusively demonstrates that the movant is not entitled to
relief, this court's review is limited to whether the Division
erroneously exercised its discretion in making this determination.
Id. at 318" (¶ 15).
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Privileges - Waiver
State v. Denis
L.R., 2004 WI App 51 (filed 4 Feb. 2004) (ordered published 24
The defendant was charged with sexually assaulting a three-year-old
child. The victim's mother disclosed to her own grandmother information
from the victim's counseling sessions. According to an affidavit, the
mother stated that the child had informed the counselor that "nothing
happened" between her and the defendant and that the child had
"fabricated stories" in other counseling sessions. The defense moved the
court to conduct an in camera inspection of the child's counseling
records. The court later determined that the mother had waived the
counseling privilege on her daughter's behalf by voluntarily disclosing
a "significant part" of the communications.
The court of appeals, in an opinion written by Judge Nettesheim,
affirmed. It was undisputed that the mother, as the child's guardian,
could waive or invoke the counselor-patient privilege under Wis. Stat.
section 905.04. It was not determinative that the mother may not have
"intended" to waive the privilege when speaking with her grandmother.
Prior case law holds that waivers of evidentiary privileges occur when a
voluntary disclosure is made, regardless of whether it is a "knowing" or
particularly "intelligent" disclosure (¶ 15). Finally, although the
mother's statements were brief, they nonetheless constituted a
"significant part of the matter or communication" (¶ 19).
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Guardians - Nominations by Parents Not Entitled to Preference
Anna S. v. Diana
M., 2004 WI App 45 (filed 22 Jan. 2004) (ordered published 24
In 1995, Diana M. gave birth to a daughter. Brian S. was adjudicated
the child's father in a paternity action. During the first four years of
the child's life, there were substantial periods of time when she did
not live with her mother because the mother was incarcerated. In 1999
the court entered an order granting physical placement of the child to
her father. The parents were granted joint legal custody in matters of
religion and education, and the father was granted sole legal custody in
all other matters. The child was living with her father and his wife,
Anna S., when the father died in a work-related accident in 2001.
A few days after the father's death, Diana M. initiated this action,
asking that her mother (the child's maternal grandmother) be appointed
guardian of the child because Diana M. was incarcerated and unable to
take care of the child. Anna S. filed a competing petition, requesting
that she be appointed the child's guardian. The court ultimately
appointed Anna S. rather than the child's maternal grandmother. On
appeal the mother argued that the circuit court did not give the weight
to her nomination of a guardian that is required by Wis. Stat. section
880.09 and by the U.S. Constitution.
In a decision authored by Judge Vergeront, the court of appeals
concluded that section 880.09 "does not require the circuit court to
give [the mother's] nomination of a guardian a preference over other
nominations or a presumption that it is in [the child's] best interests.
Rather, the statute requires the circuit court to consider the mother's
nomination, because she is 'an interested person' and to give it the
weight the court considers appropriate in light of all of the evidence"
The mother also argued that, as a matter of constitutional law, a
court must presume that her nomination of a guardian was in the child's
best interest, thus giving a preference to her nomination over other
nominations. The Fourteenth Amendment's guarantee of due process
includes protection of the fundamental liberty interest in the care,
custody, and control of one's children. However, the appellate court was
not persuaded that this liberty interest was violated by the court's
failure to presume that the mother's nomination of a guardian was in the
child's best interests.
Child Placement - No Statutory or Due Process Right to Equal
Arnold v. Arnold,
2004 WI App 62 (filed 4 Feb. 2004) (ordered published 24 March 2004)
A father appealed from a custody and placement order. He was awarded
placement of his children for 102 days per year, not the equal
(182.5-day) placement he had requested. He offered both statutory and
constitutional arguments in support of his position.
In a decision authored by Judge Brown, the court said that although
Keller v. Keller, 2002 WI App 161, 256 Wis. 2d 401, 647 N.W.2d
426, held that Wis. Stat. section 767.24(4)(a) requires the family court
to provide placement that is regularly recurring and meaningful, this is
not tantamount to a presumption of equal placement.
The father also contended that the physical placement statutes
violate due process because they deprive him of a fundamental liberty
interest in equally participating in the raising of his children. The
court concluded that this substantive due process claim must fail. It
found that the father did not meet his heavy burden of showing why the
state should be foreclosed from allowing its courts to set placement
schedules commensurate with the best interests of the children, even if
other than equal placement results.
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Prescriptive Easements - Owner-in-Possession Exception to 30-Year
Schauer v. Baker,
2004 WI App 41 (filed 5 Feb. 2004) (ordered published 24 March 2004)
Wis. Stat. section 893.33(2) provides in pertinent part as follows:
"[N]o action affecting the possession or title of any real estate may be
commenced ... which is founded upon any ... event occurring more than 30
years prior to the date of commencement of the action, unless ... within
30 years after the date of the ... event there is [an instrument or
notice of claim recorded with the register of deeds]." Apart from the
owner-in-possession exception to this statute (see next paragraph), the
parties agreed that this 30-year recording requirement applies to both
adverse possession and prescriptive easement claims.
An exception to this 30-year recording requirement is established in
section 893.33(5): "[The thirty-year recording requirement] does not
apply to any action commenced ... by any person who is in possession of
the real estate involved as owner at the time the action is commenced."
This is the so-called "owner-in-possession" exception.
The question before the court of appeals in this case was whether the
owner-in-possession exception applies to the holder of a prescriptive
easement. In a decision authored by Judge Lundsten, the court concluded
that the exception does not extend to persons who hold a prescriptive
easement because, among other reasons, "a prescriptive easement does not
denote ownership" (¶ 19).
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Sexually Violent Persons
Jury Trials - General Verdicts
State v. Madison,
2004 WI App 46 (filed 24 Feb. 2004) (ordered published 24 March
The court of appeals, in an opinion written by Judge Cane, affirmed a
judgment, based on a jury verdict, finding that the defendant is a
sexually violent person and ordering him committed pursuant to Wis.
Stat. chapter 980. The defendant appealed the trial court's denial of
his request for a special verdict and the court's submission to the jury
of the standard general verdict for chapter 980 cases set forth in Wis.
J.I. - Criminal 2503. The court held that the defendant had not been
deprived his right to equal protection by the use of a general verdict.
Nothing in the record established a "systematic deprivation" of special
verdicts in chapter 980 cases. Nor did he demonstrate "the premise of
his equal protection argument: that a general verdict makes it easier to
return a verdict in favor of commitment" (¶ 9). The court of
appeals concluded, however, by cautioning that its opinion "should not
be read to conclude a respondent in a Wis. Stat. ch. 980 commitment
proceeding should never have a special verdict" (¶ 10).
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